IEA SECTION 165 CS 315 OF 2022 DOH 09.09.2022 86 PP

1
IN THE COURT OF SH. MANOJ KUMAR RANA, CJ (SD), GURUGRAM

1A 1 OF 2022 IN CS 315 OF 2022
IN THE MATTER OF:
NEMO through Lt Col (Veteran) Sarvadaman Singh Oberoi ... Applicant/ Petitioner
Versus
Union of India through The Secretary, Ministry of AYUSH & others ....... Defendants
NDOH: 09.09.2022
This list is filed by Sarvadaman Singh Oberoi this 9th day of September 2022
(an earlier list in 1997 pages filed 21st day of March, 2022 also refers) us 74 IEA, 1872
1 2 3 4
Ser Description Intends to show Pages
1 Alexander Now, their Lordships are of opinion, that one of the first and highest duties of 2-15
Rodger & c v. all Courts is to take care that the act of the Court does no injury to any of the
The Comptoir Suitors, and when the expression "the act of the Court" is used, it does not mean
d’Escompte de merely the act of the Primary Court; or of any intermediate Court of appeal, but
Paris, (1871) the act of the Court as a whole, from the lowest Court which entertains
LR 3 PC 465 jurisdiction over the matter up to the ·highest Court which finally disposes of
the case. It is the duty of the aggregate of those Tribunals, if I may use the
expression, to take care that no act of the Court in the course of the whole of
the proceedings does an injury to the suitors in the Court. (23.01.1871)
2 Seaford Court when a defect appears a judge cannot simply fold his hands and blame the 16-35
Estates Ltd v. draftsman. He must set to work on the constructive task of finding the intention
Asher, (1949) 2 of Parliament, and he must do this not only from the language of the statute, but
KB 481 also from a consideration of the social conditions which gave rise to it, and of
the mischief which it was passed to remedy, and then he must supplement the
written word so as to give " force and life " to the intention of the legislature
(01.06.1949)
3 Employees Ordinarily if there is no mention or discussion in the judgment of a learned 36-52
State Insurance Single Judge of a particular question or point, it has to be assumed that the same
Corporation v. was not agitated or pressed before him. Mr. Kapur, however, made a categorical
Spangles & statement at the Bar that he had argued the question of the applicability of
Glue section 18 of the Limitation Act, fully and had even cited the two Lahore
Manufacturers decisions before the learned Single Judge. In these circumstances we do not
ILR (1967) 2 consider that Mr. Kapur should be debarred from raising the question of
Punj 694 limitation which even otherwise can be raised at any stage of the proceedings.
(02.02.1967)
4 Extracts A.R. 103.....injustice done should be corrected by applying the principle actus curiae 53-59
Antulay v. R.S. neminem gravabit-an act of the court should prejudice no one. 104. To err is
Nayak and human, is the oft-quoted saying. Courts including the apex one are no exception.
another, (1985) To own up the mistake when judicial satisfaction is reached does not militate
2 SCC 602 (7 J) against its status or authority. Perhaps it would enhance both. (29.04.1988)
5 Dharmendra 26....it is a well settled proposition of law that an act of the Court shall prejudice 60-82
Kumar Singh v. no one and the same is reflected in the maxim, "Actus curiae neminem
State of U.P. , gravabit"(28.10.2020)
(2021) 1 SCC
93 (5 J)
6 2022.04.19 IA 1 Application under S.151 CPC r/w O3R1 - contumacious conduct of all the six 83-86
of 2022 in CS respondents neglecting to file WS for over 30 days, without seeking permission
315 of 2022 of court for delay beyond 30 days in filing WS (having themselves sought time
on 15.02.22 for filing WS by 22.02.22) in harmony with law laid down in
Kanwar Singh Saini v. High Court of Delhi, 2011 (6) UJ (SC) 4202 and failing
to be present in person through authorised officer on 16.04.2022 when so
ordered vide order dated 04.04.2022 (19.04.2022)
Place: Gurugram
Date: 09.09.2022 Applicant/For Petitioner NEMO
Sarvadaman Singh Oberoi
1102, Tower 1, Uniworld Garden I, Sector 47, Gurugram 122018
Mob: 9818768349, Email: manioberoi@gmail.com
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VOL. III.] CASES IN THE PRIVY COUNCIL. 465
A LEXANDER
ARD JAMES GILMAN _5 APPELLANTS
RODGER, CHARLES CAR-1 J.C.*
N
;
IE
N , A D RICH 1871
,_,_,
AND Jan. 23.
THE COMPTOIR D'ESCOMPTE DE PARISi
AND THE CHARTERED BANK OF IN- RESPONDE NTS.
DIA, AUSTRALIA, AND CHINA ... 5
ON APPEAL FROM THE- SUPREME COURT 01!"' HONG KONG.
Reversal of judgment-Order in Council, construction of-Repayment of amount

of judgment-Interest-Rest-itution- Costs-Appeal-Practice-Printed
cases.
By an Order in Council made on an appeal, the judgment of the Supreme

Court at Hong Kong, in an action of 'l'rover, was reversed, and a nonsuit
directed to be entered, whereof "the Governor, Lieutenant-Governor, &c.,
for the time being, and all other persons whom it may concern, were to take
11otice and govern themselves accordingly." On the receipt of this Order in
the Colony, the successful Appellant, to carry the Order into execution, applied
to the Supreme Court for an Order for repayment of the amount of the
judgment, with interest upon the whole sum paid by way of principal and
interest by the Appellant. The Supreme Court was of opinion ; that as there
were no express directions in the Order in Council for payment of interest
on the judgment, it had no power to allow interest, and refused to make any
Order thereon :-
Held, reversing such decision ; that although by the terms of the Order
in Coimcil the judgment of the Supreme Court was only reversed, and a
nonsuit directed to be entered, yet (1) that interest upon the judgment was
to be implied under the general words there used ; and (2) that inasmuch as
under the general Regulations of 1845, applicable to appeals from Hong Kong
to the Queen in Council, the Supreme Court is to execute and carry into
effect the judgments rind Orders of the Queen in Council, that Court had
power, without more, to have ordered payment of interest; as otherwise
the successful Appellant would not be restored to all he had lost by reason of
the judgment being reversed.
Leave to appeal had been granted by the Court below from the Order
refusing interest: but the Appellant petitioned the Queen in Council praying
that the Judicial Committee might determine the matter as related to the
claim for interest:-
Held, that, if the original Order did not impliedly give interest, and as an
* Present :-LORD CAIRNS, Sm JAMES WILLIAM CoLVILE, and Sm JOSEPH

NA PIER, BART.
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466 CASES IN THE PRIVY COUNCIL. [L. R.
J. C. appeal had been granted from the Order refusin g it, the more convenient
course would be to brin g the question b Elfore the, Judicial Committee on the
1 871
._.,._, original appeal. This was agreed to, and the case directed to be argued,
v.
RODGER without printed Cases, on the materials furnished by the Record of the proceed-
ings on the application to the Court below to carry out the Order in Council.
THE 0oMPTOIR
D' EscoMPTE
DE P.t.:RI$. THIS was an application for the purpose of carrying out the
Order in Council made on the appeal in this case.
The facts have been already reported (1).
By the Order� in Council made on the appeal, it was ordered,
that the judgment of the Supreme Court at Hong Kong of the
3rd of June, 1867, should be set aside, together with the verdict,
and that a judgment of nonsuit should be entered · in lieu thereof,
whereof the Governor, Lieutenant-Governor, &c., of the Island of
Hong Kong, for the time being, and all other persons whom it might
concern, were to take notice and govern themselves accordingly.
The Defendants lmving paid the Plaintiffs the amount of the
judgment and the costs, in the action upon which judgment of non
suit was thus ordered to be entered, a motion, founded on the
Order in Council, was made by the Defendants in the Supreme
Comt at Hong Kong . for a rule for repayment of the sum of
$56,390·12, the amom1t of the judgment so paid on the 25th of
September, 1867, and interest thereon from that date at the rate
. of 12 per centum per annum and of $6,33(3, the costs of the action
paid on the 9th of November, 1867, wlth like interest from that
date ; and also for payment of the sum of $3,593, the amount of
the Defendant's taxed costs, without interest, making together the
sum of $66,266, and that the Defendants might issue execution for
those respective sums.
On the 16th of June, 1869, the Chief Justice Smale gave judg
ment as follows : .
" Upon the report of the Judicial Committee, Her Majesty in
· Council, on the 17th of March, 1869, ordered that a judgment of
nonsuit should be entered in this Comt in lieu of the judgment for
the Plaintiffs. It appears to me, that, in obedience to that Order,
it is my duty (a nonsuit having been accordingly entered) to carry
out that nonsuit by an Order, and as nearly as practicable to make
that nonsuit available . in every respect for th� Defendants now, as
(1) Law Rep. 2 P. C. 393.
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VOL. Ill.] CASES IN THE PRIVY COUNCIL. 467
if it had been entered on the 3rd of June, 1867. I have no doubt J. 0.

that it is :piy duty to order, and I do order, that the sums of 1871
$56,390 and $6,336 be repaid by the Plaintiffs to the Defendants, RODGER
v.
and also that the sum of $3,593, the Defendants' costs in this THE COMPTOIR
Court recently taxed, be paid by the Plaintiffs to the Defendants : D'ESCOllPIJ'E
DE PARIS,
no interest is asked for on this last-mentioned sum. But the
Defendants claim interest on the two former sums. On the ques
thus raised much argument has been offered. Taking into
consideration the able arguments on each side, I proceed to re
view the general doctrine as to interest, and to apply it to the
questions now before me. It appears that, in the absence of any
contract for it, or of documentary or other evidence from which
an actual agreement to pay interest might be inferred, interest was
not payable at Common Law on any debt. By the 3 & 4 Will. 4,
c. 42, sec. 30, provision was made for giving interest where not
actually contracted for. By that A.ct the jury trying the case are
authOl'ized, if they think fit, to allow interest to the Plaintiffs if
the debt is payable on a day certain, ox from demand made whei:.
uncertain. .A.nd by 1 & 2 Viet. c. 1 1 0, sec. 17, judgment debts· are
to carxy interest, and execution may be issued for judgment debts
and interest. It appears to me that no interest is recoverable at
Common Law in this case, and the wo1·ds of neither of these
Statutes extend to the case of a nonsuit, or to repayment of money
erroneously paid under � judgment which is reversed. Such a
case as the present is very unusual, and would seem to be a cas1.is
omissus in our Statute law, and I am of opinion, that no power
vests in this Court to give the interest as asked. The Order will
be for payment of the three sums, making together $66,266, with
the costs of entering up the nonsuit and of this motion. The case
of Page v. Newman (l) was referred to, but there Lord Tenterden
expressed an opinion, that a Court of Error could give the in
terest, which would be recoverable in the Court below. It is not
for me to . speculate as to the power of the Judicial Committee of
the P1·ivy Council to give the interest asked, it is enough for me
to decide that this Court has no such power."
The Appellants applied to the Supreme Court for leave to
(l) 9 B. & C. 381.

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J. C; appeal against the Order of that Court refusing to grant a rule for
1871 payment of interest, and such leave was granted.
RODGER The Appellants afterwards presented a petition to Her Majesty
·v .
THE Co11tPTOm
in Council, which set out the above facts, and further stated, that
D'Esco11tPTE the Respondents were Bankers, and had had the possession and use
DE PARIS.
of the above su:n:i of $56,390·12 from the 25th of September, 1867,
until it was repaid on the 24th of September, 1869, and of the sum
of $6,336·47 from the 9th of November, 1867, until it was repaid
on the 24th of September, 1869, and that the Appellants had been
deprived during that time of th�. benefit and advantage of those
several sums to which they were declared legally entitled by the
Order in Council of the 17th of March, 1869, and pray ed that Her
Maj esty in Councii would refer the Petitione1·s to the Judicial
Committee to hear and determine the matter, and to Order the
payment of interest on the two several sums of $56,390·12, and
$6,336·47, with interest upon the amount paid by _the Appellants
pending the appeal, or· for such further or other Order as might
appear just and prop er.
J. c.• Sir R. Palmer, Q.C., Mr. Manisty, Q.C. (Mr. Baylis with them ) ,.
for the Petitioners :-
Jan. 26.
1870
�
The object of this application is for a supplemental Order
directin g payment of interest upon the amount of the judgment
a_nd costs paid by the Petitioners on the j udgment of the Court
below, which was reversed, with costs, by this Tribunal. If the
Judicial Committee had known that the j ud gment debt ancl costs·
had been paid, interest would have been allowed and decreed, as a
matter of course. [ Sm JOSEPH NAPIER :-Ought not the Peti
. tioners, the then Appellants, to have informed this Court of those
payments at the hearing of the appeal ? ] It was an action of 'rrover,
and the judgment debt and interest has been paid ; that fact was
unknown to the Ap1Jellants at the time when the judgment in their
favour was pronounced by this Court, they would otherwise, of
course, have applied for interest on the sums paid. The judgment
of this Court was simply one of nonsuit. Thl:l Order in Council is
inchoate, and being imperfectly carried out, this Tribunal has powe1·
• Present :-LORD ,v 1;�s•rnuRY, Sm JAMES WILLIAM CoLVILE, and Sm JosEPH
N A.'rER, BART.
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to add to and complete it. If the Order in Council is not properl y J. C.
carried into execution, this Court will recommend a fresh Order to 1870
._.,....,
enforce it (1). By refusing to gi'Ve interest, the Court below has RODGER
1}.
failed to give proper effect to Her Majesty's Order in Council. 'l'HE Conir'l·om
We submit, that the proper mode to obtain the· amendment of the D'EWOJlP1'Is
.DII PAmS.
Order is that we have taken, namely, applying to this Tribunal by
petition. We have, however, obtained leave from the Court below
to appeal against this Order, if the Committee should think that
course necessary.
LonD vVEsTBURY :-
It appears that a new question arose in the Court below, when
the Order in Council was sought to b� enforced, namely, whether
interest should be paid on the repayment of the amount, the result
of the verdict, and costs. It appears to us, that there was.a miscar
riage of justice in carrying out the Or,der in Council. We are
disposed to think it a case for a supplementa_ry appeal.
Mr. Kay, Q.C., and . Mr Holl, who appeared for the Respondents,
consented to the petition being converted into an appeal.
THEIR LORDSHIPS :directed, that the Record of the proceedings

in the Court below on the application for interest should be
printed, but, in the circumstances, dispensed with the parties
lodging printed Cases. •
In accordance with that direction, the Record was lodged, and J. C."'
the case now heard. 1871
Jan. 2S.
__.,._,
Sir R. Palmer, Q.C., and Mr. Manisty, Q.C. (with them Mr.
Bay lis), for the Appellants :-
Int�rest was a necessary incident upon the reversal by this
Tribunal of the· judgment of the Court below, and ought, as a
matter of course, to have been ordered by the Supreme Court at
Hong Kong, in carrying out the Order in Council made in pur-
* Present :-LORD CAIRNS, Sm JAMES WILLIAM CoLvILE, and Sm JOSEPH
NAPIER, BART.
(1) See In re Ra;'ah Vassareddy was issued ordering the Cou,rt below
Lutchmeputty Naidoo (8 Moore's P. C. forthwith to carry into execution an
Cases, 115), where a peremptory Order OrdQr in Council made on the appeitl.
VqL, III. 3 2 N
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470 CASES IN THE PRIVY COUNCTI;. [L. R.
J. C. suance of such judgment of reversal. Though not expressed in the
.-.-.,
1871 Order, it was nec�ssarily implied, as without it substantial justice
v.
RODGER could not be done. The terms of the Order were sufficient to
T1rn CoMPTOIR
entitle the parties to the full benefit of the judgment, which, accord
D'Esco1'n'TE ing to the principles of the Civil Law, could only be a restitutio in
DE PARIS.
integrum. A similar question arose in the House of Lords in
Hopwood v. Hopwood (1 ). There, upon the reversal of the Lords
Justices' decree (2), it appears from the Registrar's Book that
interest was paid without any application for an Order by the Court
of Chancery. So in Blake v. Mowatt, which is a case that has not
been reported, on a reversal by the House of Lords of a decree
which had been enforced ; a petition was presented to the l\faster
of the Rolls for restoration of the money, and interest thereon,
which the Court ordered. One of the strong grounds in this case
for the allowance of interest, is the fact, as · stated in the peti
tion to the Court below, and not denied, namely, that the Respon
dents are bankers, and must be presumed to have used the
money in their business. It is not in di spu}e that the amount
of the judgment was paid at the Respondents' deman�, not
voluntarily, by the Appellants, and that the stipulations con
tained in the additional instructions in the 01·der in Council of
the 21st of January, 1846, regarding appeals from Hong Kong,
which provide for seeurity being given if execution of a judgment .
appealed from is obtained, were not properly complied with. By
section 3 of the Hong Kong Ordinance, No. 1 5, of 1844 (3), the
law of England 'is in force in that Island, and is the practice. of the
Supreme Court. By the English law, interest in such a case as this
would have been awarded. In Sympson v. Jurr:on (4), it was held,
that if judgment be reversed on error, a writ of restitution will be
(1) 7 H. L. C. 728. for the immediate performance of any
(2) 26 L. J. (Ch.) 292. judgment, decree, or sentence which
(3) That section is as follows : " If may be made or pronounced by us, our
such leave to appeal shall b� praycll by heirs and successors, in our or their
the party or parties who is or are ad Privy Council upon any such appeal ;
jud g ed to pay any sum of money or to_ and until sucl� security be given the
perform any duty, the said Supreme execution of the judgme�t, decree,
Court shall direct that the judgment, order, or sentence appealed from :!!hall ·
decree, or sentence appe:1led from shall be stayed."
be carried into execution, if the party (4) Cro. Jae. 699.
or parties Respondent slmll give security
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N OL. III.] CASES IN TJrn PRIVY COUNCIL. 471

awarded to inquire what profits the party has taken, eolore }udieii J. C.
zwmdieti. And the Court the1·e expressly declares that " the Plaintiff 1871
._.,_,
v.
in the vVrit of en-or, afte1· reversal, is to be restored to all he lost." Rovmm
[LORD CAIRNS :-In the cases of Rafah Lelanund Singh v. JJfaha '1'1rn Co)IPTOIB
ra:J°ah Lucl.:rnissiir Singh (1), and Kirkland v. Modee Peston-_jee Khoor D'l�scm1 1"1 i,:
IJE PA IIIS.
sedfee (2), sums found due for mesne profits were held, as judgment
debts, to carry interest.] · Even before the passing of the Cornrnon
Law Proeedwre Aet, 1 852, which, by s. 150, makes proceedings in
En01· a siipersedeas of execution from the time of service of the
Master's note, the law wa.s, in effect, the same. Thus, in Belshaw v.
Marshall (3), a Sheriff executing a fl. fa., after notice of the allow
ance of a "\Vrit of euor, was held liable in trespass, though there
had been no further supersedeas of the execution. In Levy v.
Langridge (4), the Court of Exchequer decided, that where· judg
ment is given in a Court of Error for the Defendant in Error, the
Court is bound, under 3 & 4 Will. 4, c. 42, s. 30, to allow interest
for the time that execution has been delayed by the Writ of error.
'Interest is paid for such time as execution has been delayed ; 1 & 2
Viet. c. 1 10, s. 17. We ask also for interest upon the costs we
have paid in the Court.
l\fr. J{ay, Q.C., and l\Ir. Holl, for the Respondents :-

As the Order in Council contained no direction for the payment
of interest on the amount of the judgment, the Supreme Court had
(1) This case was heard on the 15th Court of Judicature at Calcutta, which
of July, 1870, before Lord Cairns, Sir had superseded the Sudder Dewanny
James ·william Colvile, Sir Joseph Court, for execution of the Order in
Napier, Bart., ancl Sir L:rn,-rence Peel. Council, possession, ancl payment of
'l'he appeal arose out of the case of wasilat, the presiding Judge decreed
Rajah Lelanitnd Singh, Baliadoor v. possession, but refused to allow the
Maharajah Molwshur Singh, Bahadoor successful Appellant mesne profits, on
(reported 10 Moore's Incl. App. Cases, the ground that no provision was mado
81), which was a suit for possession of by the Order in Council for mesnc pro
lands and wasilat, or mesne profits. By fits. 'rhe Judicial Committee held,
an Order in Council, made on the re that the right to mesne profits was
commendation of the Judicial Com consequential to the declaration in tho
mittee, the decree of the then Budd� Order in Council decreeing possession.
J)ewanny .Adawlut was reversed, ancl (2) 3 Moore's Ind. App. Cases, 220.
the suit remitted to India, subject to (3) 4 B. & Ad. 336.
certain inquiries directed to be made by (4) 4 M. & W. 337.
that Court. On a petition to the High
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J. 0. no power to award interest. It 'Jtmnot be successfully contended,

1871- that it is an incident to the Order in Council. If interest was
__,_,
RODGER intended to be demanded, it ought to have been applied for cm the
v.
'.r m;: CoMPTOIU hearing of the appeal. It is admitted that the English Law applies.
D'Bsci.m PTE By aimlogy to the practice here, after reversal of a judgment
DE l'AHIS.
of a Common Law Court theFe is a regular mode of proceeding by
the Plaintiff in Error by a Writ to the Sheriff to give restitution,
or levy : Lush's Practice, p. 675 [3rd Ed.J; Archbold's Q. B.
I'ractice, p. 643 [12th Ed]. In Tidd's Forms, p. 586 [8th Ed.],
,the form of a writ of restitution is set out. · It is by sci. fa., and
directs that " 0. D. should be restored to all things that he has
lost by occasion of that judgment ; " that only means the return
of the thing or money. Syrnpson v. Jureon (1), relied on by the
Appellant, was a case relating to land, and is distinguishable from
the present, which relates only to money. Interest is nowhere
mentioned in any of the cases on this subject as demandable at
Common Law. rrhus, in Eyre v. Wood.fine (2), a Tcrmor for years
was outlawed, he was restored to the term on reversal of the out ..
lawry, but without mesne profits. In Bacon's Abr., tit. " Error,"
M. 3, it is l�id down that if a term for years is sold by the
Sheriff, and the judgment be reversed, the party shall be_ restored
only to the money for which the _ term was sold, and not to the
term itself. In Comts of . Equity, on reversal of a decree1 interest
is given only in special circumstances. The true ·rule is stated
in Parker v. JJforrel (3), that where a decree or Order under
which money has been paid is reversed on appeal, the money ·
is in general ordered to be repaid without interest. [Sm J oSEPH
NAPIER :-Suppose, in this case, as �he Respondents are Bankers,
that the money paid for the judgment and costs has been used
by them in their business, and they have received interest thereon.]
·Wolfe v. Findlay (4) is an answer to that question. 'r here a
London Firm, Bankers and Agents of a Fi1·II1 in India, had assets
belonging to a deceased's estate in their possession. For a
period of ten years the assets had been mixed with their moneys ;
as no application had· been made to pay the money into Court, it
was held, that the London Firm was not liable to pay interest. So
(1) Cro. Jae. 699. (3) 2 Phillips, 453.
(2) Cro. Eliz. 278. . (4) 6 Hare, 66 . .
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in Lord Ohedworth _ v. Edward8 (1), which was cited in the former J. C .
case, an Agent who, by desire of his Principal, kept large sums 1871
of money in his hands, for which he was to be responsil?le, paying RODGER
from time to time, and duly accounting, was decla,red not liable to v.
THE CO)IPTOTR
pay interest, even supposing, as the Court said, he had employed D'EscOllI'TE
pE PAms.
the money for his own interest. . rr hese authorities· establish the
proposition, that interest is not an incident of the possession of
money, and is only given where specially provided, either by con
tract expressed or implied. ·when interest is given by Statute, as in
' 3 & 4 W"ill. 4, c. 42, s. 30, and 1 & 2 Viet, c. 1 10, s. 17, it is by way
of dainages. Levy v. Langridge (2) shews that, before the former
Statute, it was in the discretion of the Court to allow inte1·est.
This Tribunal can do no more than the Supreme Court could do.
The Supreme Court of Hong Kong had no power under the Order
in Council, or the Genernl Regulations of 1845, i-egarding appeals
from that Island, to award interest, unless specifically directed.
· The case of Blake v. Mowatt, relied on by the Appellants, differs
from this. There the terms of remit diTectecl th e Court of Chan
cery to do what justice requiTed ; and there being a fraudulent
representation, and a personal liability, it was a case which would
justify a Court of Equity decreeing interest.
LORD CAIRNS :-
In this case an u,pr1lication was made to their Lordships some
time since by Petition by persons who were Appellants in the year
1869 before this Tribunal, and upon whose appeal a judgment of
the Comt at Hong Kong was reversed, and the application made by
the petition was, that the Court at Hong Kong might order not
merely restitution of the money which had been paid under the
original judgment, but also interest upon all the sums they had
11aid. 'l'heir Lordships, when that petition came before them, were
of opinion that the Record ought to be printecl ; and they dispen sed
with the printing of any Cases by the parties, and they thou ght
that when the Record was printed they would be in a position to
dispose of the questions rnised by the petition. That question is
one of considerable importance, not only to the 1)arties in this case,
;but with reference to the general practice of primary Co{uts. It
(l) 8 Yes. �1.8. (2) 4 l\lL & \V. 337.
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,J. C. arises in this way. Upon the 3rd of June, 1867, in an action of
1871 Trover brought against the Petitioners by the Respondents,a verdict
._,_,
v.
, RODGER was g iven by the jury for $56,390·12 as principal, and $6,336·47
•_r nE COlllPTOIR
as interest, with a further sum for costs. Thereupon, the Defen
D'l�SCO]l[PTE dants in the action, the present Petitioners, applied to the Court
J>E PARIS,
at Hong Kong, by a rule, for a new trial or for a nonsuit. That
rule was refused with ,costs upon the 29th of June, 1867. A very
few days afterwards, on . the 2nd of July, 1867, the present Peti
tioners applied to the Court for leave to appeal; and leave was
granted on the 5th of July, 1867. Now, in that state of things, it
was in the option of . the Plaintiffs in the action, the Bank, either
to have allowed the sum which they have been awarded to remain
in the hands of the present Petitioners, or to insist upon execu
tion of the judgment, giving secu1·ity to abide by any Order that
Her Majesty in Council might make. The general Regulation
gave them that option. They had the right to execution, giving
the security of the kind that I have mentioned. They were fully
aware, from the application for leave to appeal which has been
stated, that an · appeal was about to be brought. They obtained
execution of the judgment, and received· the sum of money which
they were awt1.rded. Her Majesty, by an Order in Council, acting
upon the recommendation of their Lordships, ordered that the
judgment of the Court below should be reversed, and that a non
suit should be entered. The Order of her Majesty did not in
express terms go further, except to say, that, " the Governor,
Lieutenant-Governor, and Commander-in-Chief of the Island of
Hong Kong, for the time being, and all other persons whom it may
concern, are to take notice and govern themselves accordingly."
But the general Regulation applicable to Hong Kong provided, in
the last sentence of the Regulation of 1845, that " the Supreme
Court should, in all cases of appeal to Her Majesty, Her heirs and
successors, conform to, execute, and carry into immediate effect
such Judgment ancl Orders, as Her Majesty, Her heirs and succes
sors in her or their Privy Council, should make thereupon, upon
the appeal, in such manner as any original judgment or decree of
the Supreme Court can or may be executed."
The result is this, that in the opinion of their Lordships it was
in the power, and it became the duty, of the Court at Hong Kong
�cccc
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'
VOL. III. ] CASES IN THE PRIVY COUNCIL. 47 5

to do everything, and to make eyery Order which was fairly and J. C.
proper ly consequential upon the reversal of the original judgment by 1871

this Tribunal. The Supreme Court at Hong Kong has entertained __,_,
RODGER
no doubt that it had the power, and that it was its duty, to order v.
THE C0Mi>1·01n
restitution of the principal sum that was paid �ver, and all the D' ESCQ;\IPTE
DE l'AIIIS.
costs that were paid over m1der the judgment. But it has held the
opinion, th at it had not the power to order a ny payment of in
terest upon any part of the sum paid over by the present Pe ti
tioners to the Respondents. The question which their Lordships
have to consider is, whether the Court at Hong Kong had or had
not that power to order payment of the interes t, and if so, whether
in this case it was or was not proper to exercise that power ?
. Now, their Lordships are of opinion, that one of the first and
· highest duties of all Courts is to take care that the act of the
Court does no injury to any of the Suitors, and when the ex pression
" the act of the Court " is used, it does 'not mean merely the act of
the Primary Court; or of any intermediate Court of appeal, but
the act of the Court as a whole, from the lowest Court which
entertains j urisdiction over the matter up to the ·hi ghest Court
which finally disposes of the case. It is the duty of the aggregate
of those 'fribunals, if I may use the expression, to take care th at
no act of the Court in the course of the whole of the proceedings
does an injury to the suitors in the Court. •
It is contended, on the part of the Re spondents liere, that the
principal sum being restored to the present petitioners, they h 1w e
n o right to recover from them any inte1·est. It is obvious that, if
that is so, inj ury, and very grave injury, will be done to the
Petitioners. They will by reason of an act of the Court have paid a
sum which it is now ascertained was ordered to be paid by mistake
and wrongfully. They will recover that sum after the lapse of a
considerable time, but they will recover it without the ordinary fruits
which are derived from the enj oy ment of money. On the other
h and, those fruits will have been enj oyed, or may have been
enjoyed, by the perso� who by mistake and by wrong obtained
possession of the money under a judgment which has been rnversed.
So far, therefore, as princi1)le is concerned, their Lordships have
no doubt or hesitation in saying tha,t injustice will be done to the
I,etlti oners, and that the pe:d ect jnclicial determination which it
�cccc
™ 13
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CASES IN THE PRIVY COUNCIL. . [L. R.
J. 0. must be the object of all Courts to arrive at, will not have been
1871 arrived at unless the })ersons who have had their money improperly
Ronmm _taken from them have the money restored to them, with interest,
THE CoMPTOIR dming the time that the money has been withheld.
1'.
D'EscoMPTE It is .said, however, that there is no authority for orde:ring the

DE J>AIUS,
payment of interest. 'rhe cases of vVrits of error which have been
referred to can hardly be considered as precedents for a case of the
present kind. The proceeding upon them was of a highly tech
nical character. It was a matter of great ral'ity for a vVrit of error
not to suspend execution in any - case, · where execution had not
_ · actually taken place before the vVrit of error was brought. Resti
tution no doubt was ord�red, and it may well be that under the
term " rnstitution," in the case of a money payment, interest was not
given by the Court which carried the restitution into effect. But
whether that be so or not, their Lordships do not think it 'necessary
to inquire further into that matter. Upon proceedings which are
much more analogous to the present, undoubtedly interest has
been given. One case has been mentioned, in the House of Lords,
the case of Blake v. Mowatt, in which money, which had been
ordered to be paid under a decree--money consisting itself of
principal and interest, that decree having been reversed in the
House of Lords-was ordered by the Court below to be 1·estored.
together with interest upon the capital sum. It probably would be
found that that case is by no means a solitary case in the practice of
tp.e House o� Lords. Their Lordships have reason to believe that
the practice of the Courts in India, when there _ has been a rev�rsal
in this Country, and when money has been ordered in India to be
paid back in consequence of that reversal, is to order the payment
of interest. Their Lordships, therefore, so far as any precedents
applicable to the case are concerned, believe that the precedents
will be found to be in fa.vour of a restitution of the money with
interest. They are quite satisfied, that this practice is in accord
ance with the true principle to be applied to this case, and with
what :the justice of such a case demands, and they think that
is pre-eminently so in a ca:;;e in which the mone y in the first
instance was ordered to be paid by the Defendants in the action,
with interest, durin g the time that the money had been in the
Defendants' possession after the conversion of the. goods.
�cccc
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VOL. III.] · CASES IN 'fHE PRIVY COUNCIL. 477

Their Lordships, therefore, consider that it will be their duty J . C.
on this petition humbly to 1·eport to Her Maj esty that the Com t '. 1 871
below, in addition to ordering the repayment of the principal, RoDGEn
v.
should have ordered the payment of interest ; and their Lordships Tim CoMrTorn
further_ think that interest should be calculated not merely upon ])'Escmn•TE
DE PA1m;.
what was the original principal sum, but upon the whole sum paid
by way of principal and interest by the Defendants in the action to
the Plaintiffs. Their Lordships can see no sound ground for
making a distinction in that gross payment between the principal
and the interest. There, however, their Lordships would stop.
They do not consider that interest should be paid upon the 'costs, .
because it has never been, in any proceeding that their Lordships
are _ aware of, the habit in ordering the refunding of costs paicl
under a decree to order that refunding with intei·est, and there
may be obvious reasons applicable to the case of costs differing
from the rnasons which applied to gross payment of another
. description.
Their Lordships further consider, that the present petition
having raised a point which was one of some novelty, upon which,
pe1·haps not unnatumlly, the learned Jud.ge of the Court below
entertained a doubt as to what his precise powers were, and a
trifling expense only having been incmred by the form in which
the case has been brought before their Lordshjps, their Lordships
· will do right in not saying anything as to the costs of this
· application, but leaving each party to bear his own costs.
THEIR LORDSHIPS repOl'ted, that in obedience to Her Majesty's

General Order in Council of the 1 1th of November, 1869 [refer
. ring the original appeal to the Judicial Committee], they had
taken the petition and appeal into consideration ; and having
heard Counsel on both sides on the record, their Lordships were of
opinion that the Order of the Chief Justice of Hong Kong, of the
1 6�h of June, 1869, ought to be varied by directing that Court
fo add to the sums 1·epaid by the Respondents to the Appellants for
principal and interest, the internst clue on the said sums at the rate
usually allowed by the Supreme Court of Hong Kong, from the
25th of September, 1867, t<;> the 24th of September, 1869, for the
principal, but no interest was to be allowed on the sum repaid by
�cccc
-----------------------------------------------------------------------------------------------------------------------------------------------------------
J. C. the Respondents to the Appellants· for costs, and that each ))arty
1 871 ,vas to pay their own costs of the appeal. By an Order in Council,
___,_,
·v.
EoDGim dated the 8th of February, 1871, tho above report ·was confirmed by
'.rm, Qo)l l"J"OIR
Her Majesty.
D']�S(X.nl l'TE
·DE J'Ams.
Solicitors for the Appellants : Reed, Phelps, & Siclgwick.
Solicitor for the Respondents : Parsons.
.T. C.* HENRY THURBURN AND ANOTHER APPELLAN'l'S ;

1871 AND
Jan. 23, 25, 26·
ROBERT STE'\,VA.RD AND ANOTHER RESPONDENTS.
ON APPEAL FROM THE SUPREME COURT Ol!� THE CAPE

OF GOOD HOPE.
Clipe of Good Hope, law of-Placaat of Charles V., 4t!i of October, 1540-
Conflict of Laws-JJomicile-Marriage Settlem,.ent made in England, a.ffecting
-Bankrttptcy-Distr·ibittion of Assets- Order of priority of Creditors on

real estat.e in the Cape Colony - Bond of Hypothecation - Registration
separate and J"oint estate of Banlcrupt-Postponement of Wife's claim under

Settlem,.ent to Cred-itors-Insolvency Ordinance, No. 6 of 1843-• Undue
preference.
The 6th section of the Placaat of the Emperor Charles V., of the 4th Octo
ber, 1540, postponing the claims of Wives, under Marriage Settlements, until
the claims of Creditors of the Husband are satisfied, formed part of the Roman
Dutch Law, which was introduced by tho Dutch Colonists on the settlement
of the Gape of Good Hope in the year 1650, and is still in force in the Colony,
unaffocted by the Colonial Insolvent Ordinance, No. 6, of 1843.
P., a Merchant domiciled in England, a member of a Firm in the Cape of
Good Hope, executed' in England a settlement on his marriage with an English
woman, whereby he covenanted to pay the Trustees of the Settlement the sum
of £13,000 for his \\Tife's benefit, and to secure the same by a mortgage on
his re�l estate in that Colony. At the time of the Settlement P. was perfectly,
solvent. The settlement was not registered in the Colony. P. afterwards
went to the Cape, and by a bond hypothecated his real estate there to his
Wife to secure the sum of £13,000 in satisfaction of the Settlement. 'l'his
Bond was registered in the Colony. P. also, while there, remitted a sum of
£7,000 to the 'l'rustces on account of the sum of £13,000 secured. by the
* Present :-LORD CAIIlNS, Sm JAMES WILLIAM CoLVILE, SIR RonERT P1uL

LIMORE (JuDGE. OF THE AD111rnAvrv ComtT), and Sm JosEPH NAPIER; BART.
SCC OnLine Web Edition, Copyright © 2014
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TruePrint™ source: LR published by ICLR
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2 K. B. KING'S RENCH DIVISION.
"requires a comparison with the whole rent, and the whole C. A.

"rent means the entire contractual rent payable by the 19,)'J
"tenant in return for the occupation of the premises together ----
" with all the other covenants of the landlord. ' Substantial' LAZARus
BARLow
"in this connexion is not the same as 'not unsubstantial,' v.
"that is, 1·ust enough to avoid the 'de minimis' principle. REGENT
ESTATES
" One of the primary meanings of the word is equivalent to Co. Ln.
"considerable, solid, or big. It is in this sense that we speak Evershed L.J.
" of a substantial fortune, a substantial meal, a substantial
" man, a substantial argument or ground of defence. Applying
" the word in this sense, it must be left to the discretion of
" the judge of fact to decide as best he can according to the
" circumstances in each case, the onus being on the landlord.
"If the judgment of the Court of Appeal in Palser's case
" were to be understood as fixing percentages as a legal
"measure, that would be going beyond the powers of the
" judiciary."
We agree with the language of Morton L.J. in the passage
cited above. In our view the judgment of Lord Caldecote C.J.
cannot be reconciled with the opinion of Lord Simon or with
the opinions of the other noble Lords in Palser v. Grinling (r).
The county court judge must, therefore, in the present case
apply to the facts as he finds them the principles laid down
by the House of Lords in Palser v. Grinling (r), and he should
in the circumstances disregard the observations of Lord
Caldecote C.J. in the Kerner case.
Appeal allowed.
Leave to appeal to the Hoitse of Lords.
Solicitors: Stone and Stone; Martineau and Reid; Cooper,
Bake & Co.
(r) [r948] A. C. 29r.
B.A.B.
SEAFORD COURT ESTATES LD. v. ASHER. C. A.
Landlord and Tena1�t-Standard rent-Letting at higher rent-Burden May 2, 3;

1949
imposed on landlords in lease-Burden not mentioned in previous June I.
tenancy agreement-Burden then voluntarily undertaken by land
lords-Transfer of burden to landlords-Some increase of rent Lord M.R.,
Greene
thereby justified-Increase of Rent and Mortgage Interest (Restrictions) Asquith, and

Denning L.JJ.
Act, 1920 (10 &, II Geo. 5, c. 17), s. 2, sub-s. 3.
By a tenancy agreement dated September 23, 1935, a flat was
let at a yearly rent of 1751. for the term of three years. The rent
------------------------------------------------------------------------------------------------------------------------------------------------------------ 17
KING'S BENCH DIVISION. [1949]

C.A. of 175l. became the standard rent under the Rent and Mortgage
Interest (Restrictions) Act, 1939. The agreement contained no
1949 undertaking by the landlords except to pay rates. By a lease
SEAFORD dated September 27, 1943, the plaintiffs let the flat for the term
COURT of five years and some days to the tenant at the old rent during
ESTATES the continuation of the war and afterwards at the yearly rent
LD. of 2501. In this lease the landlords covenanted to do certain
v.
ASHER, things including the removal of refuse from the flat and the
supply of hot water for the use of the flat. During the earlier
tenancy the landlords had voluntarily done these things. The
question raised on this appeal was whether under s. 2, sub-s. 3,
of the Increase of Rent and Mortgage Interest (Restrictions)
Act, 1920, there had been a transfer of a burden to the landlords
justifying an increase in the rent over the standard rent.
Held, (r.) that on the constructic_:m of the words "the terms on
" which any dwelling-house is held are on the whole not less
" favourable " " terms " meant contractual terms.
(2.) that a burden had been transferred to the landlords under
the lease of 1943 affording a ground for an increase of the rent
over the standard rent. This was so, although the tenant under
the earlier lease was under a merely contingent burden arising if
landlords ceased to perform voluntarily the services contractually
undertaken by them under the lease of 1943.
Winchester Courts, Ld. v. Miller (1944) K. B. 734 applied.
Property Holding Co. v. Clark (1948) 1 K. B. 630 not followed
in so far as the court must there be taken to have decided that
under the second part of s. 2, sub-s. 3, a tenant must de facto have
borne a burden afterwards contractually transferred to the
landlord.
Case referred back to the county court judge to determine
whether, and, if so, to what extent the burden transferred was
over-valued by the increase of rent on the standard rent.
APPEAL from Bloomsbury county court.

By a tenancy agreement dated September 23, 1935, a flat
on the first floor of Seaford Court, Great Portland Street, W.,
was let to one Edwards for the term of three years from
September 29, 1935, at the yearly rent of 175l. payable in
advance quarterly. The only undertaking by the landlords
was to pay all rates and taxes, except charges for electric
light and gas. The tenant remained in occupation after
the termination of the tenancy agreement until 1939. The
rent of 175l. became the standard rent, the rateable value being
less than root. The flat remained empty till 1943. By a
lease dated September 27, 1943, the plaintiffs, Seaford Court
Estates Ld., let the flat to the defendant, Richard A. J. Asher,
from September 1, 1943, for the term of five years and twenty
eight days at the yearly rent of 25ol. reducible to 175l. per
®
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True Prinf
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2 K. B. KING ' S BENCH DIVISION.
annum until three months after the cessation of hostilities C . A.

in the existing war, the rent to be paid quarterly in advance. 1 949
The lease contained covenants by the plaintiffs (1.) to keep
SEAFORD
the main walls and timbers, roof, drains and pipes and the exterior COURT
of the premises and the staircase, hall, lifts, passages and E STATES
Lu .
such other internal parts as should be used by the plaintiffs V.
in good and substantial repair and properly lighted and to ASHER.
keep all cisterns and water pipes in the flat in good and
substantial order ; (2.) to arrange for the removal of domestic
refuse of the flat in bins every day except Sunday ; and (3.) to
provide and maintain a proper supply of hot water for the use
of the flat.
The defendant having failed to pay the quarter's rent
due in advance on June 24, 1948, the plaintiffs commenced
proceedings for the rent of 62l. ros. od. on December 14, 1948.
The defendant counterclaimed for rent in excess of the standard
rent paid since March 25, 1946, amounting to 1681. 15s. od.
or alternatively 15ol. by deduction from the rent claimed and all
subsequent rent becoming payable or alternatively to recover
the amount of the overpayments.
The question that arose at the hearing was whether the
increase of rent over the standard rent was justified under the
Increase of Rent and Mortgage Interest (Restrictions) Act,
1920 (hereinafter called the " Rent Restrictions Act, 1920 "),
s. 2, sub-s. 3 (1) by reason of the burden cast on the plaintiffs
for the first time by the covenants in the lease of 1943 seeing
that no such burden was imposed on the plaintiffs under
the earlier tenancy agreement, although they had then
voluntarily undertaken that burden.
The county court judge held that no burden was in fact
transferred by the lease of 1943. He therefore gave judgment
(1) The Increase of Rent and " increased, whether or not the
Mortgage Interest (Restrictions) " sum periodically payable by way
Act, 1920, s. 2, sub-s. 3, provides : " of rent is increased and any
" Any transfer to a tenant of any " increase of rent in respect of
" burden or liability previously " any transfer to a landlord of any
" borne by the landlord shall, for " burden or liability previously
" the purposes of this Act, be " borne by the tenant when, as the
" treated as an alteration of rent, " result of such transfer, the
" and where, as a result of such " terms on which any dwelling
" a transfer, the terms on which a " house is heldare on the whole not
" dwelling-house is held are on the " less favourable to the tenant than
" whole less favourable to the " the previous terms, shall be
" tenant than the previous terms, " deemed not to be an increase of
" the rent shall be deemed to be " rent for the purpose of this Act."
------------------------------------------------------------------------------------------------------------------------------------------------------------ 19
·· 1
KING'S BENCH DIVISION. l 9 4 9 -]
C. A. in favour of the defendant for nzl. ros. od. being the exce ss
1 949
payment of rent paid during the preceding two years, less
43l. r5s. od. being the proper amount of rent that became
SEAFORD
COURT due in June, 1948.
The plaintiffs appealed and the defendant cross-appealed.
.
ESTATES
LD·.
v.
ASHER. Henderson K.C. and James Macmillan for the plaintiffs.
This appeal turns on the construction of s. 2, sub-s. 3, of the
Increase of Rent and Mortgage Interest (Restrictions) Act,
r920. The standard rent of these premises is based on the
terms of the tenancy agreement of r935. Under that
agreement the only burden on the landlord was to pay rates
a nd taxes . It contained no provision for the supply of hot
water or for the removal of refuse. Under the tenancy
agreement of r943 the landlord undertook to pay additional
assessments, to do repairs, to remove domestic refuse and to
maintain a supply of hot water. It is submitted first : that
in s. 2, sub-s. 3, the landlord and tenant referred to are not
individuals already in contractual relationship. The reference
is to the relationship generally : per Luxmoore L.J. in
Winchester Court Ld. v. Miller (I). Secondly, the sub
section has to be construed liberally so as to give effect to
any variation of the terms of the contract by which the
standard rent is ascertained no matter how the variation
is brought about ; per Scott a nd Evershed L.JJ. Property
Holding Co. Ld. v . Clark (2) . Thirdly, the word "transfer "
in the sub-section is synonymous with "change " or
" shifting." Fourthly, the sub-section is not restricted to
consensual transfers. Fifthly, " burden or liability " is not
tautologous. "Burden " is equivalent to a de facto respon
sibility. They referred to First National Housing Trust Ld.
v. Chesterfield Rural District Council (3). The obj ect of the
sub-section is to maintain the equilibrium between the landlord
and the tenant.
Stephenson for the defendant. There is noth1ng in
Winchester Court Ld. v. Miller (r) which concludes this case.
In that case a contractual burden was transferred to the
landlord. Here no contractual burden ha s been transferred
to the landlord. The fact that the landlord has now under
taken to do what he in fact did in r935 does not mean that
any burden or liability previously borne by the tenant has
( 1 ) [1944] K. B . 734, 748. (3) [ 1 948] 2 K B. 3 5 1 .
(2) [1948] r K. B. 630.
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2 K. B. Kn;G' s BENCH DIVISim; .
been transferred to him. Both limbs of the sub-section C. A.

pre-suppose that it is a contractual burden which has been 1949
transferred. Further it is submitted that for the sub-section
SEAFORD
to apply the landlord must know what the original position COURT
was and fix the new rent in the light of that position. If ESTATES
Lo .
the landlord increases the rent more than is a uthorized by V.
s. 2, sub-s. 3, the whole increase is irrecoverable. The landlord ASHER .
must both show that the increase was in respect of a transfer
of a burden which was previously borne by the tenant and that
the increase was reasonable. This he has not done here.
In spite of the decision in Property Holding Co. Ld. v. Clark (I)
the county court judge was right in finding that no burden
previously borne by the tenant had been transferred to the
landlord. Burden in the sub-section refers to matters which
the tenant was bound to do. If there was no burden on the
tenant under the original agreement none can have been
transferred to the landlord. Lastly, there is no evidence
that the landlord put up the rent because he undertook these
obligations.
Evershed L.J. in Property Holding Co. v. Clark (1)
pointed out that there were certain burdens which naturally
fell on the lessor or the lessee-as, for example, the common
staircase and hall to a number of flats over which the landlord
alone had control. So too there are certain burdens which
might automatically be transferred to the tenant of a flat
because he could not otherwise use the fiat.
[DENNING L.J. Must you not look at the facts before
and after the lease of 1943 was granted ?]
Yes, and there was no transfer of burden under the new lease
because it only imposed on the landlords a burden they had
previously undertaken voluntarily. Moreover part of this
burden was necessarily undertaken by the landlords. It
would be the true converse of Clark's case (1) if Edwards
had been under covenant in 1935 to do what the landlords
would be expected to do and in 1943 the landlords expressly
undertook this burden. Then there would be a shifting of the
burden. It is difficult to see why the court should not apply
that principal. Here the landlords in fact had previously
undertaken the burden which was in 1943 expressly cast on
them by the new lease. There was then no shifting in the
burden to justify an increase in the rent. ·when regard
was had to the terms of the two lettings on the facts, it is
.( 1) [ 1 9 4 8] i K. B. 630.
------------------------------------------------------------------------------------------------------------------------------------------------------------ 21
486 KING' S BENCH DIVISION . [1949]

C. A. clear that the tenant under the first letting never undertook
1 949
the burden now expressly undertaken by the landlords.
Clark's case (1) shows that the shifting must be of at least
SEAFORD
COURT a practical burden in order to make s . 2, sub-s. 3, applicable .
ESTATES Is not the language of the sub-section perfectly clear as to
Lo .
V. this ? There has been no transfer of a burden and therefore
ASHE R . there was no right for the landlords to increase the rent.
The increase of rent must be "in respect of " a transfer to
the landlords of a burden "previously borne by the tenant. "
The words are strong and show that any burden not previously
borne cannot be transferred. The fact that the tenant,
Edwards, never bore the burden in question shows conclusively
that the sub-section has no application.
Henderson K.C. replied.
Cur. adv. vult.
June I. Their Lordships read their judgments .

LORD GREENE M. R. The relevant facts are stated in the
judgments of Asquith L.J. and Denning L.J., which I have
had the advantage of reading. I agree with their conclm.ions
and the reasoning on which they are based, and have only
a few words of my own to add. I may say, however , that the
true interpretation of s. 2, sub-s. 3, of the Rent Restrictions
Act, 1920, is a matter which appears to me to be left by the
authorities in some obscurity and might well be the subject
of consideration by the highest tribunal. The present question
arises under the second limb of the sub-section, which deals
with the case where there has been an increase of rent. In
order to ascertain whether what is de facto an increase of
rent ought, for the purposes of the Act, to be deemed not to
be an increase of rent, we are required to compare the
" terms " on which the dwelling-house was held previously
to the de facto increase of rent with the " terms " on which
it is held subsequently to that increase. The meaning of the
word " terms " in this context is not, in my opinion, open to
doubt. It bears the ordinary meaning of that word when
found in a lease, that is, the provisions of the lease which are
binding in law. For the purpose of this comparison we are
required to ascertain whether (r.) the de facto increase of rent
is in respect of a transfer to the landlord of a burden or
liability previously borne by the tenant, and (2.) whether
the result of such transfer is to make the new terms not less
(1) [ 1 948) •I K. B. 630.
------------------------------------------------------------------------------------------------------------------------------------------------------------ 22
2 K. B. KIN G ' S BENCH DIVISIO N .
favourable than the previous terms . This must, as it seems c. A.

to me, involve a weighing of " terms " in the new lease, one 1 949
of which (the increase of rent) is detrimental, and the other -·--
5��0
of which (the assumption of a transferred burden or liability
by the landlords) is beneficial to the tenant ; and for the EsTATEs
purpose of that operation I should have thought that it was \�·
not permissible to go outside the " terms " and consider the AsHE R .
effect of something which ca nnot properly be described as a Lord Greene
term ; in other words, the transfer of the burden or liability ,r.R.
must be something which of itself operates to make a change
in the " terms " of the lease capable of being weighed against
the other relevant " term, " i.e., the increase in the rent.
In the present case there came into existence in the new
lease a " term " which was absent from the previous lea se,
namely, the contractual liability of the landlord to provide
the services in question, and for the reasons given by
Asquith L.J., the increase of rent, or at any rate an appropriate
amount of it, must, I think, be taken as having been made
"in respect " of that assumption of liability. In the
circumstances can it be said that there has been a " transfer "
to the landlord of a " burden or liability previously borne
" by the tenant " ? There was admittedly no transfer of a
" liability, " since that word, in my opinion, means a legal
liability enforceable by the landlord, or by a third party,
for example, a local authority. The word " burden " is,
however, in my judgment, apt to describe the position of
the tenant. That word must, I should have thought, at any
rate include a thing which the tenant as such reasonably
desires to have provided for his benefit for the provision
of which he has no legal right of recourse against anyone
else, his landlord or a third party. In the present case the
services in question were reasonably desired by the tenant;
and he had no such right of recourse. If he wanted them the
burden, so far as his legal position was concerned, lay on his
own shoulders, and the assumption of liability by the landlord
relieved him of that burden. It is suggested that we should
take into account the circumstance that during the currency
of the old lease the landlord was voluntarily providing the
services. But there was no " term " in the old lease that he
should do so, and for the purposes of the required comparison
of " terms " I do not myself see how it is possible to introduce
something which operated in fact but cannot in any way
be regarded as a " term." I do not myself think that this
------------------------------------------------------------------------------------------------------------------------------------------------------------ 23
KING ' S BENCH DIVISION . [1949]

C . A. conclusion is inconsistent with any decision by which we are
1 949
bound. If, however, I am wrong in this, I am prepared to
accept the views expressed by Asquith L.J. in relation to that
SEAFORD
COURT topic. The order will be as mentioned by him.
ESTATES
ASQUITH L.J. This is an appeal by the plaintiff company

LD.
!I .
ASHER. and a cross-appeal by the defendant from a decision of His
Honour Judge Dale in the Bloomsbury county court, whereby
he adj udged that the plaintiff company was entitled to succeed
against the defendant to the extent of 4-3 l. r5s. od. on a claim
for one quarter's rent of a flat in Great Portland Street, and
that the defendant's counterclaim in respect of rent overpaid
in the past was entitled to succeed to the extent of I I2l. ros. od.
He accordingly gave judgment for the defendant for a balance
of 68l. odd.
The flat in question was let by the plaintiff company to
the defendant by a lease of September 22, r943, at a rent
of 25ol. per annum payable quarterly in advance. The
plaintiff company claimed 62l. ms. od. being one quarter's
rent at that annual rate payable on June 24, r948, for the
quarter beginning on that day. The defendant, who had
been paying for a considerable time on that basis, set up
that the landlord company was not entitled to claim more
than the standard rent, which he alleged (and it is now agreed)
was r75l. per annum. At that annualrate the proper quarterly
rent would be 43l. r5s. od., r8l. 15s. od. less than 62l. ms. od. ,
the quarterly rent claimed on 25ol. per annum. The defendant
accordingly contended (r.) that the plaintiff company's claim
for the quarter's rent should be reduced from 62l. ms. od.
to 43l. 15s. od. ; (2. ) that he was entitled to counterclaim
for each of eleven quarters previous to June 24, r948, an
over-payment of r8l. 15s. od. , making 206l. 5s. od. in all.
The learned judge found the standard rent of the flat was
r75l. per annum, awarded the plaintiffs 43l. r5s. od. for one
quarter's rent on this basis, and sustained the counterclaim
for repayment of r8l. ros. od. quarterly, not for eleven quarters
as claimed, but for six quarters only, on which footing, as
stated, it totalled IIZl. ros. od. , and 68l. odd was due on balance
to the defendant.
Against this result the plaintiff company appealed and
the defendant cross-appealed. The ground of the plaintiffs'
appeal was that they were entitled to charge rent at 25ol.
per annum-75l. more than the standard rent-by reason
------------------------------------------------------------------------------------------------------------------------------------------------------------ 24
2 K. B. KING' S BENCH DIVISION .
of the provisions of s. 2, sub-s. 3, of the Rent Restrictions C . A.

Act, r920, so far as that sub-section relates to transfers of 1 949
burdens or liabilities from a tenant to a landlord. The grounds
of the cross-appeal by the defendant were that the county SEAFORD
COURT
court judge should have held that the r8l. 15s. od. repayment ESTATES
per quarter was due not in 'respect of six quarters only, but Lo .
V.
of a longer period. His notice of cross-appeal argues for this ASHER.
repayment in respect of nine quarters, but as to one of these Asquith L.J.

quarters the claim has been waived by the defendant, and
the difference between six and eight quarters was conceded
by the plaintiffs in the course of the argument in this court.
The relevant facts are not in dispute. The flat in question
was the property of the plaintiff company at least as long
ago as 1935. By a lease of September 23 of that year they
let it to one Edwards at 175l. per annum, and it is conceded
(the flat having a rateable value of 62l.) that it is subj ect as
to rent to the Rent Restriction Acts, and that this figure
of r75l. represented the standard rent. That lease contained
no covenants to be performed by the landlords save a single
one to pay rates and taxes. Edwards' term expired on
September 29, 1938, but he held over till December, 1939.
The flat was vacant from then till September, 1943 . It
was then let to the defendant at a rent of 25ol. This second
lease contained a number of covenants to be performed by
the landlords. Inter alia they covenanted to pay certain
impositions other than rates and taxes, to repair the exterior
of the house, to remove refuse, and (most important of all)
to provide hot water, an onerous obligation at a time when
the cost of fuel was rising and supplies precarious. The
county court judge, however, found that, while the plaintiffs
under their earlier lease to Edwards, had not yet assumed a
legal obligation to provide any of these services, de facto
and as an act of grace they did during that period provide
all of them. This finding is important since the county court
judge inferred from it that there had been no " transfer of a
" burden or liability " to the landlords within s. 2 , sub-s. 3,
of the Rent Restrictions Act , 1920, and gave judgment in
fa vour of the defendant on the basis of this inference.
Section 2, sub-s. 3, of the Act of 1920, so far as material,
reads as follows : " Any transfer to a tenant of any burden
" or liability previously borne by the landlord shall, for the
" purposes of this Act, be treated as an alteration of rent,
" and where , as the result of such a transfer, the terms on which
------------------------------------------------------------------------------------------------------------------------------------------------------------ 25
KING' S BENCH DIVISION. [1949]

C. A . " a dwelling-house is held are on the whole less favourable
" to the tenant than the previous terms, the rent shall be
1 949
" deemed to be increased, whether or not the sum periodically
SEAFORD
C OURT " payable by way of rent is increased "-now follows the material
ES TATES limb of the sub-section-" and any increase of rent in respect
LD .
1'. " of any transfer to a landlord of any burden or liability
ASHER. " previously borne by the tenant where , as the result of such
As.:iuith L.J, " transfer, the terms on which any dwelling-house is held are
" on the whole not less favourable to the tenant than the
" previous terms, shall be deemed not to be an increase of rent
" for the purposes of this Act." While the construction
of this provision is obscure and difficult its broad aim is plain
First : A tenant who pays an unreduced money rent (namely,
the standard rent plus permitted increases, if any) must not
get less for it . If he does, the rent is to be treated as increased.
This is the object of the first limb of the sub-section. Secondly,
the obj ect of the second limb is that a landlord who charges
an " increased " rent (more than the standard rent plus
permitted increases, if any) may not exact the increase unless,
and save to the extent that, he gives more for it. Any
increase of rent not justified on this basis need not be paid
by the tenant, and, if paid, can be recovered back by him.
The second limb of the sub-section is the relevant one in this
case. The plaintiffs as landlords had to show that the
increase of the rent from r75l. (the standard rent) to 2501.
was an increase to which that limb applied, and which in con
sequence of its application was to be " deemed not to be an "
(unpermitted) " increase for the purposes of the Act " ; in
other words, that it was to be deemed to be legally exigible
by the landlords, and if paid by the tenant irrecoverable
by him.
Now in order to bring the increase of rent within the relevant
part of the sub-section so th at it can be " deemed " not to
be an unpermitted increase, the landlords must establish four
propositions : (i) that " the tem1s on which the dwelling-house
" is held," though changed, " are not less favourable to the
" tenant " than they were before the increase of rent ; (ii) that
the change in the terms is the " result " of " a transfer to the
" landlord of a burden or liability " ; (iii) that this " burden
" or liability " was before the transfer " borne by the tenant " ;
(iv) that the increase in the rent is an increase " in respect
" of the transfer " in question. I am o f opinion, with my
Lord, that in the first o f these propositions " terms " means
®
I O N L I N E ;p'
True Prinf
------------------------------------------------------------------------------------------------------------------------------------------------------------ 26
2 K. B. KI NG'S BENCH DIVISIO N . 49 1

" contractual terms, " namely, legal rights or obligations, C. A.
not mere de facto advantages or handicaps. When a statute 1 949
is speaking of the terms on which premises are held by a ----
· ·
tenant from a 1an dlord there 1s a strong presumption that it
SEAFORD
couRT
means the first. Before inquiring, on this assumption, whether EsTATEs,
the above four propositions are established in relation to the Ln.
V.
facts of the present case, and the provision therefore applies, AsHER.
it may be helpful to proceed by stages and to consider first Asquith L.J.

whether the provision has any, and if so what, application
on somewhat simpler facts.
(a) It clearly does apply (and this is the simplest case)
where a legal obligation is transplanted from the back of the
tenant to the back of the landlord, provided the increase of
rent does no more than compensate the landlord for this
transplantation. For, in that case, there is a transfer to the
landlord of a " liability " previously borne by the tenant,
this transfer " results " in new contractual " terms " which
(after the increased rent has been allowed for) are " not less
" favourable to the tenant, " and the increased rent is " in
" respect of that transfer " (a statement which I will try to
make good later) .
(b) At the other end of the scale the provision clearly does
not apply where no obligation enters into the picture, where,
for example, the landlord volunta rily begins to provide some
service for the tenan t with which the tenant had until then
voluntarily provided himself or gone unprovided, because
the provision clearly contemplates only cases in which the
(contractual) " terms " are affected, and on the facts assumed
they will not have been affected : First National Housing
Trust v . Chesterfield R. D. C. (r) .
(c) Between these extremes fall cases (of which the present
is one example) where the landlord assumes a legal obligation
previously not resting on the tenant, or the tenant is relieved
of a legal obligation, previously resting on him , which is not
shifted as an obligation on to the shoulders of the landlord.
(For example, the present case, and Winchester Court Ld. v.
Miller (2) .)
In such cases there has clearly been a change in the
(contractual) " terms " on which the dwelling-house is held.
But does that change " result " from " a transfer to the land
" lord of a burden or liability previously borne by the
" tenant " ? In approaching this question some significance
(1) [1948) 2 K. B. 351. (2) [1944) K. B. 73 4 .
------------------------------------------------------------------------------------------------------------------------------------------------------------ 27
49 2 KING' S BENCH DIVISIO N .
C. A. must be attributed to the phrase " burden or liability." If

1 94- 9
" liability " (which suggests a legal obligation stricto sensu)
had stood alone the natural inference would be that there
SHAFORD
COURT must, to satisfy the provision, never be less than what has
ESTATES been called the transplantation of an obligation as in case (a)
Lo .
v. above. The addition of the words " burden or ". implies
ASHE R . that something less or something looser than such a trans
Asquith L.J. plantation will suffice, and two cases decided directly un der
s. 2, sub-s. 3, both bear out this view. One appears to say
that the " something less " is enough ; the other that the
something less is essential and (possibly) that something more
is necessary. These two cases are Winchester Court Ld. v.
M·iller (1) and Property Holding Co. Ld. v. Clark (z) . In neither
of them did the landlord, as in the present case , assume an
obligation ; in each case a party was released from one .
In Miller's case (1) the tenant, who had previously been saddled
with a full re pairing covenant, was later released from that part
of the obligation which covered " fair wear and tear. " In
Clark's case (2) the landlord, who had previously been under
an obligation (a) to provide certain cooking and heating
facilities, and (b) to do certain other things (for example,
clean the common stair) , was later released from these
obligations. Clark's case (2) therefore , was one within the
first limb of s. 2, sub-s . 3, which treats of " transfer of a burden "
from the landlord to the tenant ; but is none the less relevant
for that, when the question is what is meant by " transfer
" of a burden, " for presumably this phrase bears the same
meaning in the second limb as in the first. In neither case
did the obligation which one party had shaken off alight as
an obligation on the shoulders of the other. The landlord
in Miller's case (1) did not become bound in law to make good
"fair wear and tear. " The tenant in Clark's case (2) did
not become bound in law to provide the cooking and heating
facilities involved, or to do the other things referred to.
Nevertheless the court held in Miller's case (1) without reserve
or qualification that there had been " a transfer to the landlord
" of a burden previously borne ·by the tenant." Miller's
case (1) decides that there is a sufficient " transfer' " where
the tenant divests himself of a legal obligation to provide
a service previously incumbent on him without the assumption
of a corresponding legal obligation by the landlord. It is
enough if what passes to the landlord is the practical necessity,
( 1 ) [ 19 44] K. B. 73 4. (2 ) [ 1948) I K. B. 630.
------------------------------------------------------------------------------------------------------------------------------------------------------------ 28
2 K. B. KING' S BENCH DIVISION. 493
or indeed short of that the mere expediency, of providing C. A.

the service himse lf. This appears plainly from the argument 1 949
when read in conjunction with the judgment of Scott L.J. SEAFORD
Counsel for the tenant arguing that there had been no COURT
" transfer, " says (r) : " The liability to repair contained in ESTATES
LD .
" Platini's covenant was not replaced in whole or in part by v.
" an undertaking of the landlords." Mr. Comyns Carr (for ASHER.
the landlords) submitted on the same page (in his reply) : Asquith L.J.
" There is a transfer of burden from tenant to landlord if a
" tenant ceases to be liable for repairs, since, if the landlord
" does not do the repairs, the property will lose value " ; and
Scott L.J. opens his judgment (with which MacKinnon L.J.
agreed) as follows : " The words of s. 2, sub-s. 3, of the Act
" of r920 are sufficient to cover Mr. Comyns Carr's
" ' interpretation ' ." Mi'ller's case (r), therefore, decides
that to constitute a " transfer " of a burden it is suffi.cient
if one party sheds an obligation to provide a service, and the
other party thenceforward has, as a matter not of contractual
duty but of practical need or even of mere prudence, to provide
it for himself. For short we will speak of such a transfer
as a transfer of the " practical burden." In Miller's case (r)
the Court of Appeal seems to have thought it wholly immaterial
whether in the sequel the transferee of the practical burden
discharged that burden by actually providing the service
in question for himself or not. The " burden " would still
have been transferred to the landlord if he had elected not to
make good wear and tear, preferring to see his house deteriorate.
On this simple rule Clark's case (z) embroiders certain
qualifications. That part of Clark's case (z) which is here
relevant is contained in the judgment of Evershed L.J. (as
he then was) with which both of the other members of the
court expressed agreement, though Scott L.J. 's judgment
contains some remarks not easy to reconcile with his professed
conformity . But Evershed L.J.'s judgment is at the lowest
a majority judgment. The learned Lord Justice (dealing
with cases where there has been something less than the
transplantation of an obligation) says in effect that the shifting
of the " practical burden " is not merely something which may
satisfy the words " transfer of a burden " but that (a) nothing
less will avail to satisfy them ; (b) something more is, or may
be, needed to do so ; and be adds (c) that a transfer will not
extend to services, the burden of which, though lifted from the
( 1 ) [1944] K. B. 734 , 739. (2) [ 1 948] 1 K. B. 630.
VOL. II. 1 949. 2 L 2
------------------------------------------------------------------------------------------------------------------------------------------------------------ 29
494 KING' S BENCH DIVISION. [1949]

C. A . landlord, the tenant is incapable in law of assuming. (b) and
r 949
(c) require elaboration . What is (b) the porro unum
necessarium ? In trying to answer this question, I will for
SEAFORD
COURT simplicity state the answer in terms of the facts of Clark's
ESTATES case (r), a case in which (unlike the present) the landlords
LD,
v. did not assume, but were relieved of, an obligation. The
ASHER . court appeared to decide that in such a case not merely must
II
Asquith L.J. the " practical burden of supplying the relevant services
shift to the tenant, but that he must in fact supply them.
There is only a transfer of a burden to the extent (to quote
the learned Lord Justice (r) ) that " the various articles
" covenanted by the landlords in the relevant clause of the
"lease of r934 to be provided . . . . or other articles for
" corresponding purposes must now be and are p1 0vided by
" the tenant and the order made in pursuance of this
11 ;
decision of the Court of Appeal actually incorporates the words

just quoted. As to (c) , certain of the obligations of which
in Clark's case (r) the landlords were relieved were obligations
to provide services, such as that of lighting and cleaning the
common stair and hall, the burden of which was incapable
of transfer to the tenant ; because as regards the common
stair or hall he had (as against the landlords and the tenants
of other flats) nothing more than a right of passage ; he could
not light or clean without exceeding his rights. It seems
possible that when Evershed L.J. (and, therefore, the majority
of the court) said " must now be and are " (I italicize the last
two words) he had in mind only these " non-transferable
" services " which " are not " provided by the tenant because
he is legally incapable of providing them. If that is all the
court meant, the limitation embodied in the words " and are "
does not apply to the present case in which " untransferable
" services " play no part. It must, however, be acknowledged
that in their literal grammatical sense the words " and are "
are apt to include more than " untransferable services " ; and it is
necessary to consider the position on the assumption that
they do.
Parenthetically (before dealing with this possibility) I
must consider whether and how far the decision in Clark's
case (r) (which fell within the first limb of s. 2, sub-s. 3) applies
to this case (which falls within the second). If in Clark's
case (r) the facts had fallen, as in the present case they do,
within the second limb of the sub-section, the court which
( 1 ) [1948] I K. B. 630, 652.
------------------------------------------------------------------------------------------------------------------------------------------------------------ 30
2 K. B. KI NG'S BENCH DIVISION . 495
decided Clark's case (r) would no doubt have applied a C. A.

<:orresponding rule giving effect to the de facto position ; and 1 949
would accordingly have held that if, before the landlord
SEAFORD
covenanted to provide the relevant services, it was he and not COURT
the tenant who in fact provided them, there could not have ESTATES
Lo .
been said to be a " transfer to the landlord from the tenant v.
" of the burden " of providing them. Indeed the most ASHER.
forcible way in which the case was put for the tenants Asquith L.J.
was that you cannot speak of a " transfer to the landlord
" ' of a burden . . . . previously borne by the tenant " when
the burden in question was never borne by the tenant at any
·stage, but was borne by the landlords throughout, till r943
-de facto, and after r943 de jure as well. Put in this way
the argument sounds formidable. Nevertheless for my part
I think it ill-founded. Before the obligation was assumed
by the landlords there was a contingent burden on the tenant,
.and, therefore, upon the landlords' assumption of the
-obligation there was a transfer of a burden to them from the
tenant ; because, although de facto the landlords in the
-e arlier period supplied hot water, etc . , they could in that period
at any moment have cut off the supply and forced the tenant
to provide it for himself or go without. By the elimination
-of this risk in r943 the tenant was emancipated from a dis
.advantage which can without abuse of language be described
as a " burden, " and one which but for what happened in r943
would very likely from being contingent have become actual
owing to the rise in fuel prices. In consequence of what
-then happened the tenant shed this burden, which settled
on the shoulders of the landlords, having in its transit assumed
the hard lineaments cf a legally enforceable obligation.
It may be said that this conclusion is in conflict with the
decision in Clark's case (I) embodied in the j udgment of
Evershed L.J. which is a j udgment of at least a maj ority of
the court. In that j udgment he appears to say that there is
no transfer of burden except in so far as the alleged transferee
thereof actually provides the services from the obligation to
supply which the alleged transferor has been relieved . A
possible interpretation of this statement, as has been noticed
above, is one which identifies services which after the alleged
transfer " are not " provided by the tenant, with services
which he is legally incapacitated from providing, as in the case
-of lighting or cleaning the common stair. If Clark's case (r)
(r) [ 1 948] r K. B. 630.
2 L 2 2
------------------------------------------------------------------------------------------------------------------------------------------------------------ 31
KI N G ' S BENCH DIVI SION . [1 949]

C. A. decided no more than that it does not touch the present case .
1 949
If, however, in Clark's case (r) , the court is to be held to the
literal scope of the words it used when it said " must be in
SEAFORD
COURT " practice and are," then its decision, in my view, conflicts
ESTATES with that in Miller's case (2) , where the factual element
L:O .
v. reflected in the words " and are " was assumed to be wholly
ASHER, immaterial and a transfer of the (contingent) practical burden
A$quitb L.J. was held sufficient per se to satisfy the sub-section . If so,
this court is at liberty to follow either of these conflicting
decisions, and I am of opinion that it ought to follow that in
Miller's case (2) .
The foregoing concerns the issue whether or not there was
in this case a transfer to the landlords of a burden previously
borne by the tenant. There remains to be considered the
contention of the tenant, that, even if there was such a transfer,
the increase of rent, 0n the facts of the present case, was
not " in respect of " such transfer, as it has to be to attract
the operation of the sub-section. The ground of this
contention is the fact (and finding) that, when in 1943 the land
lords raised the rent from 175l. to 25ol., they had either forgotten,
or, at all events, did not advert to, the terms on which. the
previous tenant, Edwards, had held from them. This
reasoning assumes that an increase of rent cannot be " in
" respect of the transfer " of a burden unless the landlord
increasing the rent consciously relates the two, the increase
and the burden, to each other. I do not think this is a legiti
mate assumption . " In respect of " is a very comprehensive
expression. Provided there is (a) an increase of rent, (b) not
more than commensurate with the quantum of the . burden
transferred, and (c) substantially contemporary with its
transfer, the words " in respect of the transfer " are, in my
view, satisfied, and this accords with the observations of
Scott L.J. in Miller's c ase (2) about the disturbance and
readj ustment of the equilibrium of the lease.
In the result I think, :first, that the plaintiffs are entitled
to succeed in their claim, not as to 43l. 15s. od. only, but
prima facie as to 62l. ros. od. ; secondly, that the defendant's
counterclaim should fail except in so far as the county court
judge may decide that the burden transferred is over-valued
at 75l. per annum. In such an event he may evaluate the
plaintiffs' claim for one quarter's rent at something intermediate
between 43l. 15s. od. and 62l. Ios. od.
(1) [1 948] I K. B. 630. (2) [1944] K. B. 734.
------------------------------------------------------------------------------------------------------------------------------------------------------------ 32
2 K. B. KING'S BENCH DIVISION. 497
DENNING L.J. I agree with the judgments of my Lord C. A .

and o f Asquith L.J. It is as well to bear steadily in mind 1 949
the facts of this case. The flat was let from 1935 to 1939
SEAFORD
at 175!. a year. The landlords were then under no obligation COURT
to provide hot water, but they did in fact do so. The flat ESTATES
LD .
was empty from r939 to r943 . Then it was let at 2501. a year, v.
but with the significant difference that the landlords bound ASHER.
themselves to provide hot water. The cost of fuel and labour
had, of course, greatly increased between 1939 and r 943 ;
and, whilst in 1939 it was no doubt economically possible
for the landlords to provide hot water free for his tenants,
it may well have been economically impossible for them to
do so in r943 unless there was some increase in the rent.
At any rate the tenant then agreed to pay 25ol. a year for the
flat. Now the tenant says that the increase from r75l. to
2501. was invalid. If his contention is correct it means that
in return for r75l. a year he will not only get the benefits
which the 1939 tenant got for that sum, but he will also get
this additional benefit thrown in ; he will be able to insist
on the landlords providing hot water free of any cost to the
tenant no matter how much the cost of fuel and labour has
already increased or may hereafter increase, and he will be
able to recover two years' over-payments at 75l. a year.
It is difficult to suppose that the legislature intended not only
to peg rents at the 1939 level, but also to enable a tenant to
get additional benefits without extra payment. If I thought
that the legislature foresaw the situation and nevertheless
intended that result, I would, of course, give effect to it.
But the question is whether it did so . Section 1, sub-s. 1 ,
of course, pegs the rent a t the 1 939 level, but s. z, sub-s. 3 ,
does a uthorize the landlord to increase the rent in certain cases.
The question is whether this is one of the cases in which an
increase is authorized.
The courts have already done a good deal to define the
scope of s. 2, sub-s. 3. Two things are clearly necessary.
First, it is necessary to compare the terms of the present
tenan cy with the terms of the previo us tenancy which existed
when the standard rent was payable. The sub-section is
quite clear on this point. The " terms " on which the dwelling
house is held must be on the whole " less favourable " or
" not less favourable " than the previous terms. " Terms "
here means terms which are binding by contract or imposed
by statute. Secondly, it is necessary that the change in the
®
I O N L I N E ;p'
True Prinf
------------------------------------------------------------------------------------------------------------------------------------------------------------ 33
KING' S BENCH DIVI SIO N . [1949]

C. A . tem1s should result in, or be the result ot, a transfer of a burden
1 949 or liability from one to the other. For this purpose the
---- transfer need not be a contractual transfer, nor need the burden
s��o be a contractual burden. The sub-section is satisfied if the
EsTATEs change of tenns puts upon the one, as matter of practice, the
\� · burden of doing work which had previously fallen on the other.
AsH E R . In this case the .first requisite is satisfied. The present
Denning L.J. terms are more favourable to the tenant than the previous
terms because the landlords undertook a binding obligation
to provide hot water, to remove refuse, and so forth. But
was the second requisite satisfied ? Was the tenant previously
under any " burden " which now falls on the landlords ?
It is said that during the previous tenancy the landlords did
in fact provide the hot water, and that therefore the tenant
was under no burden. This is where the rub comes. I confess
that according to the ordinary meaning of the word " burden "
the tenant was under no burden previously to provide hot
water. But neither were the landlords. There was no legal
obligation on the landlords to provide hot water, and if they
for any reason, good or bad, decided to cut it off, the tenant
would have no legal ground of complaint. When the price
of fuel rose the landlords would both legally and morally have
been justified in saying that they would not provide hot water
unless they were paid a contribution towards the increase in
cost. The tenant was therefore under the contingent burden, as
a matter of practice, of providing the hot water himself, or
paying a contribution towards the increased cost, or going
without. Under the changed terms all that burden falls on
the landlords. No matter how much the price of fuel rises,
no matter how difficult it is to obtain, the landlords can no
longer cut off the hot water or ask the tenant for a contribution
towards the increase in cost. The change of terms does there
fore put on the landlords a burden which previously fell
contingently on the tenant.
The question for decision in this case is whether we are
at liberty to extend the ordinary meaning of " burden " so
as to include a contingent burden of the kind I have described.
Now this court has already held that this sub-section is to be
liberally construed so as to give effect to the gov1;rning
principles embodied in the legislation (Winchester Court Ld.
v. Miller (1) ) ; and I think we should do the same. Whenever
a statute comes up for consideration it must be remembered
(1) [1944] K. B. 734.
------------------------------------------------------------------------------------------------------------------------------------------------------------ 34
2 K. B. KI NG' S BENCH DIVISION. 499
that it is not within human powers to foresee the manifold C. A .

sets of facts which may arise, and, even if it were, it is not
1 949
possible to provide for them in terms free from all ambiguity.
SEAFORD
The English language is not an instrument of mathematical COURT
precision. Our literature would be much the poorer if it were . ESTATES
Lo .
This is where the draftsmen of Acts of Parliament have often V.
been unfairly criticized. A judge, believing himself to be ASHER.
fettered by the supposed rule that he must look to the language Denning L.J.
and nothing else, laments that the draftsmen have not
provided for this or that , or have been guilty of some or other
ambiguity. It would certainly save the j udges trouble if
Acts of Parliament were drafted with divine prescience and
perfect clarity . In the absence of it, when a defect appears
a j udge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the
intention of Parliament, and he must do this not only from the
langu;:i.ge of the statute, but also from a consideration of the
social conditions which gave rise to it, and of the mischief
which it was passed to remedy, and then he must supplement
the written word so as to give " force and life " to the intention
of the legislature . That was clearly laid down by the resolution
of the judges in Heydon's case (1) , and it is the safest guide
to-day. Good practical advice on the subject was given
about the same time by Plowden in his second volume Eyston
v. Studd (2) . Put into homely metaphor it is this : A judge
should ask himself the question : If the makers of the Act had
themselves come across this ruck in the texture of it, how would
they have straightened it out ? He must then do as they
would have done . A judge must not alter the material of
which it is woven , but he can and should iron out the creases.
Approaching this case in that way, I cannot help feeling
that the legislature had not specifically in mind a contingent
burden such as we have here . If it had would it not have
put it on the same footing as an actual burden ? I think it
would. It would have permitted an increase of rent when
the terms were so changed as to put a positive legal burden
on the landlord. If the parties expressly agreed between
themselves the amount of the increase on that account the
court would give effect to their agreement. But if, as here ,
they did not direct their minds to the point, the court has
itself to assess the amount of the increase. It has to say
how much the tenant should pay " in respect of " the transfer
(1) (1584) 3 Co . Rep. 7a. (2) (1 5 74) 2 Plowden, 465.
®
[gj(C(G SCC OnLine Web Edition: http://www.scconline.com
\ O N L I N Ef
True Pri nf
------------------------------------------------------------------------------------------------------------------------------------------------------------ 35
500 KING'S BENCH DIVISION . [1949]

C. A . of this burden to the landlord. It should do this by asking
what a will1ng tenant would agree to pay and a willing landlord
1 949
would agree to accept in respect of it. Just as in the earlier
SEAFORD
COURT cases the courts were able to assess the value of the " fair
ESTATES " wear and tear " clause, and of a ' ' cooker," so they can assess
LD.
v. the value of the hot water clause and translate it fairly in
ASHER. terms of rent ; and what applies to hot water applies also
Denning L.J. to the removal of refuse and so forth . I agree that the appeal
should be allowed, and with the order proposed by Asquith L.J.
Appeal allowed.
Case referred to coimty court judge to determine whether
the burden transferred to landlords is over-valued at
75l. per annu,m. If so, plaintiffs' claim to be
correspondingly reduced. Counterclaim dismissed subject
to any over-valuation.
Leave to defendants to appeal to House of Lords.
Solicitors : Griffinhoofe & Brewster ; Kennedy, Ponsonby

and Prideaux.
H . C. G.
C. A. SMITH AND SNIPES HALL FARM LD. v.

1 949 RIVER DOUGLAS CATCHMENT BOARD.
May 2 4 , 25,
26, 2 7 ; Land drainage-River-Flooding-Agreement under seal by drainage
June 3 .
board with landowner to widen, deepen and make good the banks of
Tucker, river and maintain completed work for all time-Contribution by
Somervell and
Denning L.JJ. landowner to cost of work-New banks unable to stand strain of
greater inflow of water-Bursting of bank-Serious flooding and
damage to crops-Duty of board-Liability of board to covenantee's
successor in title and persons holding title imder him-Covenant
ntnning with the land-Law of Property A ct, 1925 (15 Geo. 5, c. 20) ,
s. 78, sub-s. I-Land Drainage A ct, 1930 (20 6- 2 1 Geo. 5, c. 44) ,
ss. 6, 34.
In 1938, by an agreement under seal, the defendant catchment
board, as the relevant drainage authority under the Land Drainage
Act, 1930, covenanted with the owners of certain lands which
were subject to flooding, situate between the Leeds and Liverpool
Canal and the River Douglas, and adjoining the Eller Brook in
the parish of Latham, Lancashire, that in consideration of the
landowners contributing to the cost the board would replace the
Source : Indian Law Reports Punjab
36
LETTERS PATEJ\T APPEAL
Be/oh,, Mehar SiJigh, C./., and .d. ;v. Grover, J.

Ei\1PLOYEES STATE J;s.;SURA?\.CE CORPORATION,-Appellant
versus
�f/s. SPANGLES St GLCE MANUFACTl:'RERS A:-SD .H,OTHER,-Respondents
Letters Patent Appeal No. 250 of 1963
February 2, 1967
Limitation Act (XXXVI of 1963)-S. 12-High Court Rules and Orders,
Vol. V, Chapter 1-A-Rule 4-Time requisite for obtaining certified copy of the
1udgment Qppealed against-High Court Rules and Orders, Vol. V, Chapter 5-B
Rule 11-Time spent in obtaining copy under rule 11 though not permissible-
Whether can be excluded-Res judicata-Appeal referred to Division Bench for
decision-Division Bench deciding the point of law involr;ed and rem(lnding the
appeal to Single Bench for decision on other points-Letters Patent Appeal filed
against the judgment of Si'i1gle Judge-Point of law decided by the Division
Bench-Whether operates as res ·judicata in Letters Patent Appeal.
Held, that rule 4 contained in Chapter 1-A of Volume V of the High Court
Rules and Orders makes the provisions of section 12 of the Limitation Act
applicable to Letters Patent Appeals and the appellant is entitled to exclude the
time requisite for obtaining a copy of the iudcrmcnt appcJled against whether such
copy is filed or not ·with the appeal. \Vher; a copy of the judgment, certified
as true copy by the concerned official of the High Court, was supplied to the
Regional Director, Employees State Insurance Corporation, under Rule 11 con�
tained in Chapter 5-B of Volume V of the High Court Rules and Orders,
although he was not entitled to it, the said Corporation was entitled to exclude the
time spent in obtaining the same, while deciding whether the Letters Patent
Appeal filed against that judgment was within time or not.
2021-11-16 (Page 1 of 17) MANU/PH/0050/1967 SARVADAMAN OBEROI

37
695
Employees State Insurance Corporation v. M/s. Spangles & Glue
Manufacturers, etc. (Grover, J. )
Held, that where a learned Single Judge referred the appeal to a Division
.Bench for decision and the Division Bench, after deciding the point of law
involved in the case, remanded the case to Single Bench for decision on other
points and a Letters Patent Appeal was filed against the judgment of the
learned Single Judge disposing of the appeal, the decision of the earlier Division
Bench with regard to the point of law decided by it will operate as res judicata
between . the parties who cannot be aHowed to challenge its correctness before the
Eench hearing the Letters Patent Appeal on the ground that a Full Bench had,
in the meanwhile, reversed the decision of the Division Bench on that point of law.
Letters Patent Appeal under clause 10 of the Letters Patent against the iudg
ment, dated 20th February, 1 963 of the Hon'ble Mr. fustice P. D. Sharma in
F.A.O. 41 of 1 961-Employees State Insurance C<>rporation vs. M/s. Spangles
& Glue Man ufacturel"s, etc.
K. L. KAPUR and V. K. SuRr, AovocA1'ES, for the Appellant.
A. C. HosHIARPURI, Aovoc,\TJ::, for the Respondents.
JUDGMENT
GROVER, J . -Seven appeals under clause 10 of the Letters Patent

(Letters Patent App eals Nos. 250, 251, 252, 253, 254. 255 and 256 of
1 963) shall stand disposed of by this. judgment.
A preliminary objection has been raised by counsel for respon

dents that all these appeals are barred by limitation. The period
of li� itation prescribed for filing such appe�.ls is thirty days from
the date of the judgment appealed from under rule 4 contained in
Chapter 1_-A of Volume V of the Rules and' Orders of th'is Court. That
rule, however, provides that section 12 of the Indian Limitation Act
governs an appeal under the Letters Patent and the appellant in such
a case is entitled to exclude the "time requisite" for obtaining a copy
of the judgment appealed against (whether such ropy i s filed or not)
even though under the Rules of the Court no copy of the judgment
is required to be filed with the memorandum of appeal. On behalf
of the appeUant it has been claimed that the copies were a pplied for,
by means of a letter, dated 23rd February, 1963. by post. of thP.
judgment in each case which had been delivered on 20th . February,
1963. The copies were despatched on 1 5th May . 1963. The appeals
were filed on 14th June, 1963. If the copies, which mean certified
,c:opies, were applied for on 23rd February, 1 963, and if they werP.
despatched on 15th May, 1963, and if that period is ev.cl uded as the

38
696
I. L. R. Punjab and Ha ryana (1967) !
time requisite , there can be no dispute that the appeals would be

within time.
Learned counsel for the respondents maintain that the copy for
obtaining which the time requisite can be excluded under rule 4 in
Chapter 1-A must be a copy which is obtained for the purpose of
filing an appeal in accordance with the rules contained in Chapter
5-B of Volume V of the Rules and Orders. Rule 4 in that Chapter
provides that every application for a copy shall contain the particulars
given thereunder, one of which, namely, (f) is whether the r.opy is
required for private or general use. The next rule 5 lays down that
upon the presentation or receipt of the application for a copy, the
proper officer shall do the various acts mentioned in the rule and after
examining the application if it is found in proper form under the rules
and practice of the Court an order will be recorded directing the
copy to be delivered. If the application is not in a proper form and
is one which may not properly be granted, an order will be recorded'
specifying the requirements to be complied with and directing its
return to the applicant. Rule 6 gives the kinds of copies and scale
of fees and court fees. It divides copies into three ki.,... ds. The first
are attested copies for private use which do not require a court tee
stamp, but cannot be used officially until the prescribed court fee has
been affixed. The second are attested conies for general use on which
the court fee prescribed by various Articles of the Court Fees Act
must be affixed before delivery. The third kind consists of unattested
copies of plaints. exhibits and depositions prepare d by Court steno
gra phers under the orders of the Presidin g Judge . Rule 1 1 provides
that copies of records required for public purposes by public officers
as defined in section 2 ( 1 7) of the Code of Civil Procedure of the
Central or State Government in India shall be sunplied free of charge
provided the application for copy is endorsed by the Head of the
Department concern ed. There ·was a note \Vh ich appeared be1 ow thjs
in the following terms : �
"For the purposes of this rule the District Magi strate will be
deemed to be the Head of Deuartment when conies oi
orders passed by Civil and Criminal Courts are required by
prosecuting agency for the purpose of appeals and revi.
sions."
This n ote has been substituted by Correction Slip No. 29, dated 30th
May, 1963, but that correction slip would not be relevant for the
purposes of the present appeals because the copies were despatched

39
697
Employees Sta '.e Insurance Corporation v. M/s. Spangles & Glue
Manufacturers; etc. (Grover, J.)
on 15th May, 1 963, before the substitution of the old note by the new
note.
Mr . K. L. Kapu r, learned counsel for the appellant, has not and

indeed cannot deny that the application which was filed for copies
was made with reference to rule 11 and not in accordance with rules
4, 5 and 6, in Chapter V-B. It would further appear that ordjnarily
when a certified copy is required for the purposes of filing an appeal,
it has to be applied for and obtained on payment of proper legal
fees, the relevant rules being 4 to 6 and that copies which are sought
to be obtained under rule 11 free of charge are meant for the purposes
mentioned in that rule, i.e., public purposes obtainable by public
officers as defined in section 2 ( 17) of the Code of Civil Procedure . The
letter which was written for copies on 23rd February, 1963, was
addressed to the Deputy Registrar by Shri R. K . Luthra, Regional
Director of the Employees' State Insurance Corporation . This Cor
poration was created by the Employees' State Insurance Act, 1948
(hereinafter called the Act). The Regional Director of the Corpora
tion cannot possibly be regarded as a public officer within the meaning
of section 2(17) of the Code.. The copies, therefore, as applied for
under rule 11 could have been refused by the registry of thi s Court.
That was not done and copies in fact were supplied by post as stated
above.
The double-barrelled objection on behalf of the responden ts is
that the copies which were obtained under rule 11 could not be
regarded as certified copies which would entitle the appellant Corpora
tion to exclusion of tim e under rule 4 contained in Chapter 1-A and
that these copies did not contain the usual en dorsement about the
presentation of the application and the date when they we re ready
or despatched from which alone the time requisite could be calculatM..
It is pointed out that if the copies had been applied for and obtained
in accordance with the provisions of rules 4 to 6 in Chapter 5-B, proper
:endorsements would have appeared on them and the appellant would
have been enUtled to exclude the time requisite in accordance with
those endorsements . Mr. - Kapur has shown us the copies which were
sent to the Corporation by post and although they are certified to be
true cop'ies by the proper official of this Court under seal, they do not
appear to have any endorsement of the date o:f the applicatiop. and
the time when they were ready or despatched by post. Mr. Kapur
has placed on record a certificate of the Suoerintendent Judicial of
this Court that the copies in question were despatched on 14th May,

40
698
I. L. R. Punjab and Haryana (1967)2
1963. Mr. Kapur has referred to the letter which the Regional
Director wrote on 23rd February, 1963, asking for the copies and it
has been verified from the records kept in the office of this Court that
this letter was received on 25th February, 1963. From this material
it is satisfactorily established that an application was made for the
copies by ,post by means of the letter, dated 23rd February, 1963
and they were actually despatched on 14th May, 1 963. It would
further appear that these copies were applied for and presumably
supplied under rule 11 although strictly speaking their supply free
of charge under that rule could have been refused for the reasons
already stated . The copies do not bear the endorsements which
are found on certified copies obtained for the purpose of filing
appeals to higher Courts which have to be applied for and obtained
under rules 4, 5 and 6 in Chapter 5�B. The question still remai ns
whether the copies in question which were obtained by the appellant
can or cannot be regarded as certified copies .
Section 12 of the Limitation Act mentio" s the word ''copy" and

so does rul e 4 in Chapter 1-A of the Rules and Orders . Order XLT.
rule 36 of the Code makes it obligatory that certified copies of th e
judgment and decree in appeal shall be furnished to the parties
on application to the Appellate Court a- d at their expense . What
has, therefor e , to he seen is the meaning of the word "certified Con\•'' .
According to section 76 of the Indian Evidence Act. everv public
officer having the custody of a public docume"lt. whi ch any person
has a right to inspect, is bound to give that person on demand a c0oy
of it on payment of the legal fees therefor together with a certificate
written at the foot of such copy that it is a true copy of such docu
n;i.ent or part thereof, as the case may be, and such certificate has
to be dated and subscribed by such officer with hi s name and his
official title and has to be sealed, whenever such officer is authorisPd
by law to niake use of a seal, and such copies so certified are called
certified copies. In Reasat Ali Khan v. Mahfuz AH Khan (1), a
Division Bench held that the word "copy as used in Order XLI and
also Order XLiI of the Code of Civil Procedure clearly
meant copies duly certified under the provisions r,f the F:vi
denc� Act a�d thus rendered capable of production before a Court
of law for examination". In my opinion, the certificate, which
appears in the copies which were supplied to the Corporation. does
contain a certificate and a seal of the nature required bv section 76
and, therefore, these copies must be deemed to be certified copies
- -- ---------------- -·--· -- -
within ° the meaning of that provision. If that be so. it is not possible
(l ) A�I.R .- 1929 Lahore 77f.

41
699
Employees State Insurance Corporation v. M/s. Spangles & Glue
Manufacturers, ere. (Grover, J.)
to see how the appellant can be deprived of the benefit of the pro
vision in rule 4 in Chapter 1-A by which time requisite can be
excluded. If that is done , all the appeals will inditputably be within
'
time and it would be wholly immaterial whether the copies were

applied for and obtained under rule 1 1 in Chapter 5-B or whether
the registry of this Court should have refused to send the copies
since rule 11 was not applicable. No party can be made to suffer
for any mistakes made by the Court or its officials and even if the
copies which were despatched should not have been despatched, the
appellant cannot be made to suffer for any such lapses. The fact re-
mains that the copies which must be held to be certified copies within
the meaning of section 76 of the Evidence Act were obtained by the
appellant and thus the requirement of rule 4 in Chapter 1-A is ful
filled.
For the purposes of deciding other point s that arise in these

appeals it will be convenient to divide the appeals into two groups,
the first co:1 sisting of Lett ers Patent Appeals Nos. 250, 251 , 252 and
253 of 1 963, and the second of Letters Patent Appeals 254, 255 ana
256 of 1 963. The facts in Letters Patent Appeal No. 250 of 1963 may
be shortly stated. The Regional Director, Empl oyees' State Insurance
Corporation, filed a petition before the Employees' Insurance Court
under section 7 5 ( 2) of the Employees' State Insuran ce Act. 1948. for
recovery of Rs. 2.046.62 nP. in respect of employees' contribution for
the period from 1st May, 1 955 to 30th September, 1 959 agaim,t
Ganeshbir Singh, Manager and partI1€r of Me ssrs Spangles and Glue
Manufacturers and the concern itself. On the pleadings four i�ues
were framed out of which reference may be made to the following
two issues : �
0
2. Whether there are sufficient reasons for not making the
application within the period of limitation ?
4. Whether the petitioner i s entitled to recover the empl oyees•

contribution as prayed for ? If so, what amount and for
what period?"
Under rule 17 of the Employees' Insurance Court Rules, 1949, every

apnlication has to be brought within twelve months from the date
on which the cause of action arose or the claim became du�. Since
the claim was time-barred, the Corporation asked for extension of
time under the provisions of rule 17. The Court declined to extend

42
700
I. L. R . Punjab and Haryana (1%7)2
the time on the ground that it was the duty of the employees of the
Corporation to have given information about the time when twenty
persons came to be employed in the respondent concern. On issue
No. 4 it was found that the amount which had been claimed by the
Corporation v-muJ d have been payable by the respondents
if the claim had been wHhin limitation. An appeal was
pr eferred to this Court which came up before a learned Single Judge
before whom the quest ion of the vires of rule 17 was canvassed . He
referred the a ppeal together with other appeals which also included
the a ppeals which have given rise to Letters Patent Appeals Nos. 251,
252 and 252 of 1 963 to a Division Bench. The Division Bench
consisting of Falshaw, C.J., and Harbans Singh, J., decided to dispose
of only certain points of law leavin g the learned Single Judge to
decide the appeals in the light of the views expressed by the Bench .
The Bench decision is reported as Chanan Singh v. Regional Director,
Employees' State Corporation (2) . The first question was whether
rule 1 7 was ultra vires the powers of the State Government. This
rule was held to be intra vires by the Bench. The next point
related to the definition of the term ufactory" in section 2 ( 12) of
the Act. By section 1 (4) the Act had been made applicable to all
factories including factories belonging to the Government other than
the seasonal factories. Now, a factory has been defined in the Act to
mean "any premises including the precincts thereof whereon twenty
or more persons are working or were working on any day of the
preceding twelve months, . . . . . . ". The question which arose in the
app':?als before the Bench was whether the :proprietor or the Manager
of the concern could be included in the number of twenty m !:'ntioned
in the definition for the purpose of determining whether the business
fell within the definition of "factory". The view of th e learned
Chief Justice may be stated in his own words : -
"In my opinion whether the employer is to be included in the

twenty persons necessary to make premises a factory or
not must d�pend on the facts of each particular case. and
where, as must be the case in many small businesses which
are on the b-irder line of bein� factories within the mean
ing of the Act, the principal employer is a person who
actively works on the premi ses in connection with the
business. he must be included in the figure of twenty, but
if he is the mincipal employer merely by being the owner
or occupier of the factory a nd does not take any personal
(2) I L R. ( 1963) 2 Punj . 11.

43
701
Employees State Insura nce Corporation v. M/s. Spangles & Glue
Manufacturers, etc. (Grover.i J.)
active part in running the business on the spot, leaving

this to a manager, he should be excluded . "
The learned Single Judge then held in the appeal in question

that no sufficient reason had been advanced much less proved to
enable the Court to extend the period of J imitation prescribed by
rule 17. He found that the claim for the period from 25th December,
1958 to 31st December, 1958, was with in time and he made
an order awarding a decree for that am ount An appeal
under clause 10 of the Letters Patent was fil ed a gainst that
judgment and during the pendency of the appeal a Full Bench of
this Court has held in Messrs United India Timber Works and
another v. Emplo,yees' State Insurance Corporation (3) that
rule 17 is ultra vires the Act and has overruled the view expressed by
the Division Bench in Chanan Singh v. Regional Director, Emp loyees•
State Corporation (2).
In the above situation the learned counsel for the appellant

Corporation has claimed that the appeals should be allowed on the
short ground that the Full Bench has declared rule 17 to be ultra vire�
with the result that no p�riod of l imitation could be said to have been
prescribed for making a claim for the employee's contribution and
since the amounts which have been determined by the Insurance
Court have been found to be correct, the Corporation is entitled to
a decree in each of the above four appeals. On behalf of the res
pondents, however. it has been contended that the decisi on of the
Divi sion Bench deHvered in these appeals at an earlier stage has
the force of res judicata and it k not ooen to the appellant to canvass
or agitate the vires of rule 17. In Satyadhyan Ghosal v_ Smt. Deorajin
Debi (4), the landlords had obt ained a decree for eiectment against
tenants. Soon after the decree had been made the Calcutta Thika
Tenancy Act, 1 949 came into force. The ten ants made an applica
tion under Order IX. rule 13 of the Code of Civil Procedure for
having that decree set aside. That application was dismissed. There
after an application was made by the tenants under section 28 of
the aforesaid Act alleging that t hey were Thika tenants and praying
that the decree made against them he rescinded. This application
was resisted by the 1a11 dlords. The Munsif held that the applicants
w€re- not Thika tenants and the decree was not liable to be rescinded.
The tenants moved the Hlgh Court of Calcutta under section 115 of
(3) I .LR. (1966) 2 Punj . 291 (F.B.) =1966 P.L.R . 566.
(4) A.I.R . 1960 S.C. 941 .

44
702
the Code . By the time the revision application was taken up, the
Calcutta Thika Tenancy Ordinance, 1952 had come into force follow
ed by an Amendment Act. The amendment Act inter alia omitted
section 28 of the original Act. The High Court had to consider the
effect of section 1 ( 2) of the Amendment Act and it was held that the
said Act did not affect the operation of section 28 of the original Act.
The order of the Munsif was set aside and after remand the Munsif
-rescinded the decree . The landlords' application under section 1 15
-of the Code against the Munsif's order was rej ected by the High
Court. The attempt of the landlords to raise before the High Court
again the question of the applicability of section 28 was unsuccessful
-on the ground that the matter was res judicata. An appeal was then
preferred by the landlords to the Supreme Court. The main argu
men t taken before their Lordships was that section 28 of the original
Act could not, after the enforcement of the Amending Act, be applied
to any proceedings pending on the d ate of the commencement of the
Ordinance. Thi s question had been decided in another case
Mahadeo1al Kanodia v . The Administrator General of West BP.nqal
(5), in which it had been held that section 28 of the original Act was
not applicable. It was observed by their Lordships that when a
matter whether on a question of fact or a question of law had been
decided between two parties in one suit or proceeding and the
decision was final, either because no appeal was taken to a higher
Court or because the appeal was dismissed, or no anpeal lay, neither
party would b e allowed in a future suit or proceedings between the
same parties to canvass the matter again. The Principle of res
judicata appl ied also as between two stages in -the same litigation to
the extent that a Court. whether the trial Court or a higher Court
having at �n earlier stage decided a matter in one way would not
allow the parties to re-agitate the matter again at a subsequent stage
of the same proceedings. Next the question that was posed was-
ccnoes this however mean that because at an earlier stage of

the litigation a Court has decided an interlocutory mat'fe,·
in one way and no appeal has been taken therefrom or no
appeal did lie, a higher Court cannot at a later stage of
the same litigation consider the matter again ?"
This question was answered in the negative and it was held that an
interlocutory order could be challenged in an appeal to a higher
Court from the final decree or order .
. --· - --- ---- - - - � --- -----
(5) A.I.R . 1960 S.C. 936.

45
703
Employees Sta e Insurance Corporation v. M / s . Spangles & Glue
Manufacturers , etc. ( Grover , J . )
Now , it is q uite clear that the q uestion whether rule 1 7 was

intra vires had been decided b y a Division Bench of this Court at an
earlier sta g e of the same litig ation and the observations of the
Su p reme Court would a pply a pp ositely to the extent that the p;irties
cannot be allowed to re-agitate the matter again at a subseq u�nt
sta g e of the same proceedin gs. It is eq uall y clear that there would
be no bar to a hi g her Court which in the present case would be the
Sn p reme Court considerin g the matter ag ain i f a n a pp eal is taken to
it , but it is not possible to see how this Bench can allow the parties
to re-ag itate the q uestion of the vires of rule 17 which has been
decided by a Division Ben ch at a previous sta g e of th e se proceedin gs.
In Balkishan Dass v. Parmeshri Dass and others ( 6 ) , a decision had
been given by the Hi g h Court at an interlocutory sta ge that the suit
could not have been brou g ht under the p rovisioP s of section 92 of the
Codp of Civil Procedure . It was held that the same question could
not be a g itated a g ain in appeal a g ainst the decree in the suit
by virtue of the a pplicability of the rule or principle of res judicata .
The decision in Satyadhyan Ghosal v. Smt Deorajin Debi ( 4 ) was
followed' and a Full Bench decision in Laxminarayan v. Sultan Jehan
Begum ( 7 ) was also relied u p on. In the H yderabad case it was
laid down that a final decision b y a Division Bench of the High
Court against an interlocutory order of the lower Court p asse d in
a revision could not be ag itated in an appe al a gainst the decree in
the same suit to another Division Bench of the High Court. Siddi qi,
J. , whil e d i s:eussing section 1 15 of the Code said : -
"But , in my opinion , that section does not authorise the

appellate Court to reconsider or interfere in the j udgment
of a Court whose orders are not liable to be treated in an
a pp eal as orders of a Subordinate Court provided these
orders ar e within the com petence of tha t Court and have
the character of bein g final and conclusive as between
the parties."
In Shyamcharan Ra qhu bar Prasad v. Sheojee B hai Jai-ram Chattri

( 8 ) , a similar view w,1 s ex p ressed an d i t was laid down that the
order p assed by the Hi gh Court in revision was final as re gards that
Court and its correctness could not be challenged in app eal oefore
the Hi g h Court an a could only be challen ged before the Su preme
-(6)!.CR. -- ( 1963 ) - 1 Pi.mT 3-20 -A:L.R . 1963 Punj . 187.
(7) A.I .R . 1951 Hyd. 132 (F.B.) .
(8) A.I.R . 1964 M.P. 288.

46
704
I. L. R. Punjab and- Haryana (1967)2
Court in an appeal from the final decree . The Madhya Pradesh

Court also followed the ratio of the decision in Satyadhyan Ghosa!
v. Shmt. Deorajin Debi ( 4), The Hyderabad and the Madhya
Pradesh Courts, did not agree with the contrary opinion expressed
in Pichu Ayyangar v. Ramanuja (9). It is obvious that the Madras
view cann ot be regarded, with respect. as correct after the decision
of their Lord ships in Satyadhyan Ghosa l v. Smt. Deorajin Debi (4).
The argument of Mr. Kapur for the appellant is that since the
present Bench in sitting as an appeal Court under clause 10 of the
Letters Patent the final decision being is of the learned Single Judge
after the appeals had been remanded to him by the Division Bench
at the previous stage the decision given about the vires of rule 17
-can be re-agitated and re-examined. He has invited us to re
examine it and to follow the law laid down by the Full Bench and
hold that since rule 17 is ultra vires the Act, no period of limitation
has been provided for the cl aims which were made bv the apnellant .
He has sought to rely on certain observations in Sat qadhyan Ghosal
v. Smt. Deorajin Debi, (4) and says that the ratio of the decision is
that an order made at an interlocutory stage can be re-agitated in
appeal . According to Mr. Kapur, a Division Bench when hearing
an appeal under clause 10 of the Letters Patent is a higher Court and
is fully comoeten t to re-examine and even overrule the decision of
this Court given at an earlier stage in the same proceedings. I find
it very difficult to accede to Mr. Kaour 's contention either on
pdnciple or authori ty. It seems to me that the analogy of a remand
cannot hold good in the pres-2nt case _ The entire appeal had been
referred to the Division Bench and whatever points the Bench decided
were conclusive. Only certain points were 1eft for decision by the
learned Si.ngle Judge ,vh ich were referred back to him but this
could not detract from the conclusiveness of the deci sion of the
Bench on the v1re_s of rule 17 Moreover . on the principles laid by
the Suprem e Court in Satyadhyan G hosal-'s case the previous order
of the Division Bench -with regard to the vires of rule 17 would not
be open to challenge before us whatever the position may be in an
appeal to the Supreme Court against our judgment . It may be
somewhat anomalous that the pronoun cement of the Full Bench in
Messrs United India Timber Works and another v. State Insurance
Corporation (3), cannot be followed in these cases but for the reason s
which h ave been stated it must be held that for the purposes of
the first group of appeals rul e 17 is intra vires the Act.
(9) I.L.R. 1940 Mad. 901.

47
705
Employees State Insurance Corporation v. M/s Spangles & Glue
Man ufacturers, etc. (Grover, J.)
Mr. Kapur has next invoked the principles enunciated in

Lachmeshwar Prasad v. Keshwar Lal Chaudhuri (10) , and Gummala
pura Taggina Matada Kotturuswami v. Setra Veeravva, (1 1 ) . In the
first case it was said that the hearing of an appeal was in the nature
of re-hearing and in moulding the relief to be granted the appellate
Court was entitled to take into account even facts and events which
had come into existence after the decree. Con&equently, the
appellate Court was comoetent to take into account legislative
changes since the dechm;,i "n appeal was given and its powers were
not confined only to seeing whether the lower Court's decision was
correct according to the law as it stood at the time when its decision
was given . In the second case Gummalapura Taggirza Matada
Kotturuswami v. Setra Veeravva, ( 1 1 ), the decision of the Federal
Court was relied on and it was reiterated that an appellate Court
could take into account any change in the law. A perusal of the
aforesaid two decisions shows that the facts there were entirely
different and distinguishable and that there is no parallel between
them and the present case. There has been RO legislative change
and although the law declared by the Full Bench is q uite different
from the one laid down by the Division Bench in these cases it
is not possible, for the reasons which have been stated, particularly
owing to the applicability of the rule or principle of res judicata, to
apply the law declared by the Full Bench to the first group of
appeals.
Mr. Kapur haii, in the alternative, sought to argue that even if
rule 17 is intra vires, these claims were at least within time by virtue
of the provision contained in section 18 of the Ind1an Limitation Act
of 1908 which would be appficable. He agrees that he cannot
invoke on the facts the benefit conferred by section 18 at least in
one appeal, namely, Letters Paten t Appeal , 251 of 1963, but in the
other three appeals (Letters Patent Appeals Nos. 250, 252 and 253
of 1963), he maintains that section 18 was fully attra cted. That
section relates to the effect of fraud and provides inter alia that
where any person having a right to institute a suit or make an
application has, by means of fraud, been kept from the knowledge
of such right or of the title on which it is founded, the time limited
for instituting a suit a gainst the person guilty of the fraud or
aceessory thereto or against any person claiming through him other
wis e than in good faith and for a valuable consideration
· - . - ---- -- ---- shall --
be.
·c 10) A.1.R:--1941 F:C-5�
(11) A.I.R . 1959 S.C . 577.

48
706
ccn i puted from the time when the fraud first become known to the
person injuriously affected thereby . The submission of Mr. Kapur
may be stated thus. According to section 44 of the Act, every
principal and immediate employer shall submit to the Corporation
or such officer of the Corporation as it may direct such returns in
such form and containing such particulars relating to persons em
ployed by him or to any factory or establishment in respect of which
he is the principal or immediate employer as may be specified in
regu lations made in th is behalf. Section 85 of the Act gives the
'Jenalt 1es for failure to pay contribu ti on, etc., and clause (e) relates
to failure or refusal to submit any return required by the regulation
or inaking of a fal se return. For the above defaults the punishment
is jmprisonment ·wh ich may extend to three months or "\vith fine
which may exten d to Rs . 500 or with both. The Act would n ot
become appl icabl e unless twenty persons ,vere employed in the
concern. As a d uty had been cast on the persons mentioned in
se1ction 44 to make proper returns, there was deliberate failure on
the part of these persons to submit the return s and give requisite
information about the number of persons employed, Thus the limi
tation would run only from the date the Corporation learnt of +he
fraudulent withholding of information which was required to be
supplied under section 44 of the Act .
Mr. Kapur has called attention to the facts alleged by him in

the various petitions, but for our purposes the facts in Letters
Patent Appeal, 250 of 1963 need only be mentioned. In the appli
cation, dated 25th December, 1 959. which wa s filed on behalf of th�
Corporation under section 75 (2) of the Act for recovery of the em
ployees' contribution, it was stated in paragraph 2 that
Messrs Spangles & Glue Manufacturers had been a factory since
1 st May, 1955 an d Ganeshbir Singh by virtue of his being the
Manager and partn€r of the factory tvas the pdncipal emp1 oyer as
defin ed jn sub-section ( 1 7) of section 2 of the Act. Paragrnph !5
which re1ated to the cause of action m ay be reprodu ced to th e extent
necessary : -
"5 ( a ) Tha t the cau �e of action (det a i ls Pxnlainf'd in 5 (b) arose
on 3rd March . 195R, when the SC-1 form, indicating the
emplovees' position, wa s submitted by the employer to
this office.
(b) That the respondent No. 1.-vide his letter, dated 22nd
January, 1959, asked the applicant office about the coverage
of his factory.

49
70'7
Emp!orees Sta,e In�urance Corporation fl. M/s. Spangles & Glue
Manufacturers, etc. (Grover, J . )
(ii) That the applicant thereupon,-vide his letter, dated 7th

February, 1 959, requested the respondent to furnish the
employment position of his factory monthwise with a view
to deciding its coverage.
(iii) That the respondent in reply, submitted the monthwise

employment position of his factory in the SC-1 form since
1st January, 1955.
(iv) That the applicant. deciding the coverage of the factory,

allotted code No. 12-2567 to the factory and requested the
respondents to pay the arrears of Employers' Special
Contribution and Employees Contribution since the date
they had employed 20 or more persons for the first time,
as their factory was deemed to be covered since such date.
{v) That the respondents despite repeated requests and

reminders have been evading the production of the records
for assessment of the contributions due and thus their pay
ments.
(g) That the provisions of the Employees' State Insurance Ad,

1 948, being mandatory, re�pondent No. 1 was required to
get his factory covered under the Act immediately, just
after he had employed 20 or more persons for the first time.
But in spite of his employing 20 persons including the
Manager since 1st May, 1955, respondent No. 1 did not
intimate the applicant about the coverage of his factory
before 22nd January, 1959 .
• • •
* • • .,,.
In paragraph 6 it was stated that if the application was barred by
time limitation might be relaxed in accordance with rule 17 on the
ground of sufficiency of the reasons given above. Mr. Kapur says
that in paragraph 5 all the necessary facts had been stated for proving
fraud and invoking the applicability of section 18 of the Limitation
Act. He admits that in paragraph 6 a prayer was made for extension
of time in accordance with rule 17 but that situation would only
arise if section 18 was not applicable and did not cover the case. He
agrees that it was not specifi.�ally stated anywhere in the application

50
708
either in paragraph 5 or paragraph 6 that the Corporation had been

kept from the knowledge of the right to claim the contribution by
means of fraud on the part of the respondents but as all the neces
sary particulars had been stated on which fraud can be found he has
invited us to go into the question of fraud and determine its effect in
accordance with the prQvisi(lns of section 18 . Order VI, rule 4 of the
Code of Civil Procedure provides that in all cases in which th e party
pleading relies on any misrepresentation, fraud, etc., particulars shall
be stated in the pleading. It is contended by Mr. Kapur that the
essential particulars had al l been stated and are to be found in
paragraph 5 and it is wholly immaterial that an express plea of fraud
was not taken . But th e cause of action arose on 3rd March, 1 959
because of the applicability of section 18 of the Limitation Act . Says
Mr. Kapu r, and rightly, that facts have to be pleaded and not the
law. The extension asked for in paragraph 6 was sought only in
the event of the application being barred by time which could not
be if the fac ts which had been stated in paragraph 5 stood established
and Mr. Kapur claims that they remained uncontroverted and un
challenged. Order VU, rule 6 of the Code of Civil Procedure pro
vides that where a suit is instituted after the expiration of the period
prescribed by the law of limitation, the plaint shall show the ground
upon which exemption from such law is claimed. According to
Mr. Kapur, all the necessary facts are stated in paragraph 5 for
claiming such exemption. Our attention has been invited by him to
two Lahore decisions in connection with the applicability of section 18
of the Limitation Act. In Ganesha v. Sadiq, (12), it was held that
when a transaction of sale was fraudulently described as one con
ferring occupancy rights on the purchaser in order to defeat the
rights of pre--emption, the limitation for pre-emption would begin to
run from the date on which the pre-emptor came to know of the
fraud. In Mt. Klradim Bibi v. Bure Khan, ( 1 3), a Mohamedan
husband was found to have deliberately and fraudulently withheld
from his wife the knowledge of divorce. It was held that since the
wife did not know of her right to . c laim lower by reason of the fraud,
time to institute suit for her dower debt would run from the date
the fraud became known to her. According to Mr. Kapur, it was
the duty of the respondents to comply with the provisions of the
statute and give the requisite information as provided by section 44
of the Act. When that had not been done and the necessary facts
which would show that the concerns in question fell within the
category of a factory within the meaning of the Act had been with
held, the ti me to file an appHcation for recovery of the employees'
- - (12) A.1.R. 1937 Lahore 97.
(13) A .I.R. 1943 Lahore 215,

51
Employ ees Sta, e Insurance Corporation v. M/s. Spangles & Glue

Mauufaclu1 ers, etc (Grover1 J )
co.ntribution under the Act would run only from the time when the
fraµrlulent withholding of information became known to the Corpo
ration, For instance , in the case of Messrs Spangles & Glue
Manufacturers twenty persons including the Manager had been em
ployed since 1st May, 1955 but no intimation was sent to the
Corporation in this behalf before 3rd March, 1959. This would
attract the applicability, of section 18 and limitation would run from
3rd March, 1959 when t he cause of action is stated to have arisen.
Now, so far as reliance on section 1 8 of the Limitation Act is

concerned, it does not appear that before the Insurance Court any
attempt was made to obtain the benefit of the said provision. As
stated before, the Corporation asked for extension of time under the
provisions of rule 17. This is so with regard to the case of
Messrs Spangles & Glue Manufacturers, the facts of which have been
mostly kept in view while dealing with the various points raised in
these appeals. As regards Letters Patent Appeal No. 252 of 1963, the
Insurance court was of the view that if rule 1 7 was infra vires, then
in the circumstances of the case the Corporation was entitled to the
benefit of extension of the period of limitation under rule 17. It
however, held that the rule was uitra vires. The same view was
expressed by the Insurance Court in Letters Patent Appeal No. 253
of 1 963. The learned Single Judge in these appeals after the
Division Bench had held that rule 1 7 was intra vires merely addressed
himself to the question whether there was sufficient ground for
extension of the period o f limitation under that rule in each of these
cases. He did not examine the applii:;ability of section 18 of the
Limitation Ad or the argument which has now been addressed to
us in respect of it. Ordinarily if there is no mention or discussion
in the judgment of a learn e d Single Judge of a particular question or
point, it has to be assuroed that the same was not agitated or pressed
before him. Mr. Kapur, however, made a categorical statement at
the Bar that he had argued the question of the applicability of
section 18 of the Limitation Act, fully and had even cited the two
La h ore decisions before the learned Single Judge . In these circum
staw'.es we do not consider that Mr. Kapur should be debarred from
ra ising the question of limitation which even otherwise can be raised
at any stage of the proceedings . There are, however, a few hurdles
in the way of the appellant Corporation obtaining a decision from us
on the qu estion of limitation. It cannot be denied that in each one
of the cases in which section 1 8 had be,en relied upon, it would be
necessary to go into questions of fact (a) with regard to the fr�!i by
which the CorpoTation was kept from the knowledge of making an

52
710·-
application before the Employees' Insurance Court under section 72

( 2) of the Act and (b) the point of time when th� Corporation came
to know of its rights to make an application. Another ancillary but
material question which will arise and which will have to be deter
mined will be whether the proprietor or the Manager of the concern
could be included in the number of twenty mentioned in the defi
nition of factory. This, as laid down by the Division Bench in the
passage extracted before. would depend on the facts of each parti
cu1ar case. The determination o f this questi¢in will have a good deal
of bearing on the decision relating to the applicability of soction 18
of the Limitation Act. The only appropriate Court for determination
of all these matters would naturally be the Court of first instance
because under section 82 of the Act an appeal lies to this Court from
an order of the Employees' Insurance Court only if it involves a sub
stantial question of law. The matters that will be decided with
reference to section 18 of the Limitation Act would be mixed ques
tions of law and fact and. therefore. the decision of the Employees'
In surance Court would be final unless its decision involves a sub
stantial question of law. Accordingly Letters Patent Appeals 250,
252 and 253 of 1 963 are allowed and the orders of the learned Single
Judge are set aside. These matters shall go back to the Employees'
Insurance Court for fresh decision in accordance with law and in the
light of the observations made in this judgment. Parties, to appear
there on 6th March. 1 967. As regards Letters Patent Appeal 251 of
1 963, the same is dismissed. There will be no order as to costs in
all these four appeals_
In the second group of appeals, namely, Letters Patent
Appeals 254. 255 and 256 of 1 963. it is common ground that they stand
concluded by the decision of the Full Bench in Messrs United India
Timber Works and another v. Employees State Ins·u:rance Corpor0;tion,
(3) . There is no previous decision in these appeals of this Court of
the same nature as was delivered by the Division Bench in Chanan
Singh v. Regiona l Director. Employees' State Corporation (2). The
only point which Mr. B. R . Tull , aiitated on behalf of the respondents
was the preliminary objection that the appeals under clause 10 of
the Letters Patent were barred. That point has been di scussed fully
when dealing wi th the prel iminary objection raised in all the seven
appeals. These appeals are consequently allowed and the order of
the learned Single Judge is set aside and that of the Employees'
Insurance Court restored. In the circumstances there will be no
order as to costs.
MEHP R S1NGH. C.J.-I agree.
B.R.T.

42
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53
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602 SUPREME COURT CASES (1988) 2 sec

(1988) 2 Supreme Court Cases 602
(BEFORE SABYASACIIl MUK.HARJI, RANGANATH MlsRA, G. L. 0zA,
B. C. RAY, S. NATARAJAN, M. N. VENKATACHALIAH AND
S. RANGANATHAN, JJ.)
A. R. ANTULAY Appellant;
Versus
R. S. NAYAK AND ANOTHER Respondents.
Criminal Appeal No. 468 of l 986t,
decided on April 29, 1988
Edltodal aote.-Sincc the number of wuea involved and aspecta conaidered are
several, the headnote ha,a been sub-divided as per scheme of the headnote given below.
Since all the points have not been covered in each of the judgments, the headnote should
be read as a whole. The leading judgment is by Mukharji, J. for himaelf, Oza and
Natarajan, lJ. Ranganath Misra, J. has concurred with Mukharji, J. with a separate
opinion and has differed with him on certain aapect1.
Oza, J. who ii a party to the opinion by Mukharji, J. has yet delivered a short opinion to
express his disaent with Mukharji, J.'a opinion and concurrence with Ranganath Misra, J. 's
opinion on the issue whether a writ of certiorari by Supreme Court would lie to correct its
own error in any judgment or order. Oza. J. has in other rcspccta agreed both with the
opinion by Mukharji, J. and the opinion by Ranganath Misra, J.
Ray, J. haa also concurred both with the opinions by Mukharji, J. and by Ranganath
Misra, J. In his abort opinion he has set out conclusions on four issues on which according
to him both opinions are clearly agreed. But, in fact, regarding the first stated concluaion on
issue of writ of certiorari by the Supreme Court to correct ita own error Mukharji, J.
and Ranganath Misra, J. differ. The p~ition of Ray, J. is also not clear on the issue
whether power of review can be exercised by the Supreme Court in the exercise of inherent
power without insisting on a formal application under Article 137.
Venkatachaliah, J. has dissented with the majority and he hu rclicd on certain
obaervationa of Ranganath Misra, J. Ranganathan, J. haa partly diuented with the majority
in that though he agrees with the majority that the transfer of the case of the petitioner to
the High Court was improper, he haa not agreed in upsetting the impugned directiona
dated Feb. 16, 1984.
Schem.e of the Headnote

G1.n : Criminal Law Amendment ( l) Criminal Law Amend-
Act, 1952, Section 7(1) ment Act, 1952, Sec-
Comtitution of India, Arti- tion 7(1}
dca 134, 136 & 137 (2) Criminal Procedure
FACTS : Facta and iauea Code, 1973, Section 4-07
(3) Letters Patent of
PART I : Validity and legality of Bombay High Court
Supreme Court's directiona
(4-) Statute Law-Repeal
A. Violation of Section 7(1)
of Criminal Law Amend- (5) Interpretation of Sta-
ment Act, 1952 tutes-literal meaning
tFrom the Judgment and Order dated July 24, 1986 of the High Court of
Bombay in Special Case No. 24 of 1982
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684 SUPREME COURT CASF.s (1988) 2 sec

any further proceeding, the direction of the Constitution Bench of
February 16, 1984 became final and it is the obligation of everyone
to implement the direction of the apex court. Such an order of this
Court should by all canons of judicial discipline be binding on this
Court as well and cannot be interfered with after attaining finality.
Brother Mukharji has referred to several authorities in support of
his conclusion that an order made without jurisdiction is not a valid
one and can be ignored, overlooked or brushed aside depending upon
the situation. I do not propose to delve into that aspect in my
separate judgment.
98. It is a well settled position in law that an act of the court
should not injure any of the suitors. The Privy Council in the well
known decision of (Alexander) Rodger v. Comptoir D'escompte De
Paris72 observed :
One of the first and highest duties of all courts is to take
care that the act of the court does no injury to any of the suitors,
and when the expression "act of the court" is used, it does not
mean merely the act of the primary court, or of any intermediate
court of appeal, but the act of the court as a whole, from the
lowest court which entertains Jurisdiction over the matter up to
the highest court which finally disposes of the case. It is the
duty of the aggregate of those Tn'bunals, if I may use the
expression, to take care that no act of the court in the course
of the whole of the proceedings does an injury to the suitors in
courts.
Brother Mukharji has also referred to several other authorities which
support this view.
99.. Once it is found that the order of transfer by this Court
dated February 16, 1984, was not within jurisdiction by the direction
of the transfer of the proceedings made by this Court, the appellant
should not suffer.
100. What remains to be decided is the procedure by which the
direction of February 16, 1984, could be recalled or altered. There
can be no doubt that certiorari shall not lie to quash a judicial order
of this Court. That is so on account of the fact that the Benches of
this Court are not subordinate to larger Benches thereof and certiorari
is therefore, not admissible for quashing of the orders made on the
J~dicial side of the court. Mr Rao had relied upon the ratio in the
case of Prem Chand Garg v. Excise CommissionerJ. Brother Mukharji
72. (1869-71) LR 3 PC 465 : 17 ER 120

29. 1963 Supp 1 SCR 885: AIR 1963 SC 996
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A. R. ANTULAY v. R. s. NAYAK (Ranganath Misra, J.) 685
has dealt with this case at considerable length. This Court was then
deal~g with an Article 32 petition which had been filed to challenge
the vrres of Rule 12 of Order 35 of this Court's Rules. Gajendra-
gadkar, J., as the learned Judge then was, spoke for himself and
three of his learned brethren including the learned Chief Justice. The
facts of the case as appearing from the judgment show that there was
a judicial order directing furnishing of security of Rs 2500 towards
the respondent's costs and the majority judgment directed :
In the result, the petition is allowed and the order passed
against the petitioners on December 12, 1961, calling upon them
to furnish security of Rs 2500 is set aside.
Shah, J. who wrote a separate judgment upheld the vires of the rule
and directed dismissal of the- petition. The fact that a judicial order
was being made the subject matter of a petition under Article 32 of
the Constitution was not noticed and whether such a proceeding was
tenable was not considered. A Nine Judge Bench of this Court in
N aresh Shridhar Miraikar v. State of M aharashtra8" referred to the
judgment in Prem Chand Garg case29 • Gajendragadkar, C. J., who
delivered the leading and majority judgml:'nt ~tated at pages 765-66 of
the Reports :
In support of his argument that a judicial decision can be
corrected by this Col.D"t in exercise of its writ jurisdiction under
Article 32(2), Mr Setalvad bas relied upon another decision of
this Court in Prem Chand Garg v. Excise Commissioner"°. In
that case, the petitioner Prem Chand Garg had been required to
furnish security for the costs of the respondent under Rule 12 of
Order 35 of the Supreme Court Rules. By this petition filed
under Article 32, he contended that the rule was invalid as it
placed obstructions on the fundamental right guaranteed under
Article 32 to move the Supreme Court for the enforcement of
fundamental rights. This plea was upheld by the majority
decision with the result that the order requiring him to furnish
security was vacated. In appreciating the effect of this decision,
it is necessary to bear in mind the nature of the contentions raised
before the court in that case. The rule itself, in terms conferred
discretion on the court, while dealing with applications made under
Article 32, to impose such terms as to costs and as tQ the giving
of security as it thinks fit. The learned Solicitor General, who
supported the validity of tlie rule, urged that though the order
requiring security to be deposited may be said to retard or
obstruct the fundamental right of the citizen guaranteed by
30. (1966) 3 SCR. 744: AIR 1967 SC 1

29. ·1963 Supp 1 SCR. 885 : AIR. 1963 SC 996
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Article 32 (1), the rule itself could not be effectively challenged
as invalid, because it was merely discretionary ; it did not impose
an obligation on the court to demand any security ; and he supple-
mented his argument by contending that under Article 142 of
the Constitution, the powers of this Court were wide enough
to impose any term or condition subject to which proceedings
before this Court could be permitted to be conducted. He
suggested that the powers of this Court under Article 142 were
not subject to any of the provisions contained in Part III including
Article 32(1). On the other hand, Mr Pathak who challenged
the validity of the rule, urged that though the rule was in form
and in substance discretionary, he disputed the validity of thr.
power which the rule conferred on this Court to demand
security ....
It would thus be seen that the main controversy in the case
of Prem Chand Gar~ centred round the question as to whether
Article 145 conferred powers on this Court to make rules, though
they may be 'inconsistent with the constitutional provisions
prescribed by Part ill. Once it was held that the powers under
Article 142 had to be read subject not only to the fundamental
rights, but to other binding statutory provisions, it became clear
that the rule which authorised the making of the impugned order
was invalid. It was in that context that the validity of the order
had to be incidentally examined. The petition was made n0t
to challenge the order as such, but to challenge the validity of
the rule under which the order was made. Once the rule was
struck down as being invalid, the order passed under the said
rule had to be vacated. It is difficult to see how this decision
can be pressed into service by Mr Setalvad in support of the
argument that a judicial order passed by this Court was helct
to be subject to the writ jurisdiction of this Court itself.
In view of this decision in Mirajkar case3° it must be taken as concluded
that judicial proceedings in this Court are not subject to the writ
jurisdiction thereof.
.101 On behalf of the appellant, at one stage, it was contended
that the appeal may be taken as a review. Apart from the fact that
the petition of review had to be filed within 30 days - and here there
has been inordinate delay - the petition for review had to be placed
before the same Bench and now that two of the learned Judges of
that Constitution Bench are still available, it must have gone only
before a Bench of five with those two learned Judges. Again under
29. 1963 Supp I SCR 885: AIR 1963 SC 996
30. (1 966) 3 SCR 744: AIR 1967 SC 1
~({]~ ® Page 86 Sunday, June 2, 2019
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A. R, ANTULAY Y. R . s. NAYAK (Ranganath Misra, J.) 687
the Rules of the court a review petition was not to be heard in court
and was liable to be disposed of by circulation. In these circum-
stances, the petition of appeal could not be taken as a review petition.
The question, therefore, to be considered now is what is the modality
to be followed for vacating the impugned direction.
102. This being the apex court, no litigant has any opportunity
of approaching any higher forum to question its decisions. Lord
Buckmaster in Montreal Street Railway Co. v. Normadin73 (sic) stated :
All rules of court are nothing but provisions intended to
secure proper administration of justice. It is, therefore, essential
that they should be made to serve and be subordinate to that
purpose.
This Court in State of Gujarat v. Ramprakash P. Purft reiterated the
position by saying: (SCC p. 159: SCC (Cri) p. '.\J, para 81
Procedure has been described to be a handmaid and not a mistress
of law, intended to subserve and facilitate the cause of justice
and not to govern or obstruct it. Like all rules of procedure,
this rule demands a construction which would promote this cause.
Once judicial satisfaction is reached that the direction was not open
to be made and it is accepted as a mistake of the court, it is not
only appropriate but also the duty of the court to rectify the mistake
by exercising inherent powers. Judicial opinion heavily leans in favour
of this view that a mistake of the court can be corrected by the court
itself without any fetters. This is on the principle as indicated in
(Alexander) Rodger case 12 • I am of the view that in the present
situation, the court's inherent powers can be exercised to remedy the
mistake. Mahajan, J. speaking for a Four Judge Bench in Keshardeo
Chamria v. Radha Kissen Chamria1 ~, at page 153 stated:
The judge had jurisdiction to correct his own error without enter-
ing into a discussion of the gro~s taken by the decree-holder or
the objections raised by the judgment-debtors.
103. The Privy Council in Debi Bakh~h Singh v. Habib Shah1\
pointed out that an abuse of the process of the court may be committed
by the court or by a party. Where a court ?mployed a procedure in
doing something which it never intended to do and there is an abuse of
the process of the court it can be corrected. Lord Shaw spoke for
73. 1917 AC 170

74. (1970) 2 scR s75: (1969) 3 sec 156: 1910 sec (Cri) 29
72. (1869-71) LR 3 PC 465: 17 ER 120
75. 1953 SCR 136: AIR 1953 SC 23
76. (1913) ILR 3S All 331
sec Online Web Edition, Copyright© 2019 47
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the Law Lords thus:
Quite apart from Section 151, any court might have rightly
considered itself to possess an inherent power to rectify the mistake
which had been inadvertently made.
It was pointed out by the Privy Council in The Bolivar77 that :
Where substantial injustice would otherwise result, the Court
has, in their Lordships' opinion, an inherent power to set aside
its own judgments of condemnation so as to let in bona fide
claims by parties . . ·..
Indian authorities are in abundance to ,;upport the view that injustice
done should be corrected by applying the principle actus curiae
neminem gravabit - an act of the court should prejudice no one.
104. To err is human, is the oft-quoted saying. Courts including
the apex one are no exception. To own up the mistake when judicial
satisfaction is reached does not miJitatte against its status or authority.
Perhaps it would enhance both .
.105. It is time to soun<I a note of caution. This Court under
its Rules of Business ordinarily sits in divisions and not as a whole
one. Each Bench, whether small or large, exercises the powers vested
in the court and decisions rendered by the Benches irrespective of their
size are considered as decisions of the court. The practtce has
developed that a larger Bench is entitled to overrule the decision of a
smaller Bench notwithstanding the fact that each of the decisions is
that of the court. That principle, however, would not apply in the
present situation and since we are sitting as a Bench of Seven we
are not entitled to reverse the decision of the Constitution Bench.
Overruling when made by a larger Bench of an earlier decision of a
smaller one is intended to take away the precedent value of the decision
without affecting the binding effect of the decision in the particular case.
Antulay, therefore, is not entitled to take advantage of the matter
being before a larger Bench. In fact, if it is a case of exercise of
inherent powers to rectify a mistake it was open even to a Five Judge
Bench to do that and it did not require a Bench larger than the
Constitution Bench for that purpose.
,106. Mr Jethmalani had told us during arguments that if there
was interference in this case there was possibility of litigants thinking
that the court had made a direction by going out of its way because
an influential person like Antu1ay was invo1ved. We are sorry that
such a suggestion was made before us by a senior counsel. If a
mistake is detected and the apex court is not able to correct it with
77. AIR 1916 PC 85

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59
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764 SUPRIIME COURT CAIW.'l (1988) 2 sec

that this is not one of those cases in which I would consider 1t appro-
priate to rec'an the earlier direction and order a retrial of the appellant
de novo before a Special Judge. I would, therefore, dismi~s the al>f)eal.
ORDER. OF THE FuLL CoURT
242. In view of the majority judgments the appeal is allowed ;
all proceedin~ in this matter subsequent to the directions of this Court
on February 16, 1984 as indicated in the judgment are set aside
and quashed. The trial shall proceed in accordance with law, that
is to say, under the Act of 1952.
Appendix
D. A. DESAI AND AMARENDRA NATH
(BEFOllE SEN, JJ .)
ABDUL REHMAN ANTULAY Petitioner ;
Versus
UNION OF INDIA AND OTHERS Respondents.
Writ Petition (Criminal) No. 708 of 1984t and Special
Leave Petition (Cri) Nos. 1149-50 of 1984:j:,
decided on April 17. 1984
Advocates who appeared in this case :
Murli Bhandare, Govinddas, Ms Bina Gupta, H. R. Bilardwaj and
P. P. Singh, Advocates, for the Petitioner;
Ram Jethmatani, Ashok Desai and Ms Ram Jethm.alani, Aovocatcs, for
the Respondents.
The Orders of the Court were delivered by
Desai, J.-1 broadly agree with the conclusion recorded by my brother.
2. The learned Judge in deciding the SLP (Cri) Nos. 1149-.';0/ 1984
has followed the decision of this Court. The teamed Judge wa.; perfectly
justified and indeed it was the duty of the learned Judge to follow the
decision of this Court which is binding on him.
3. Special leave petitions are dismissed.
Amarendra Nath Sen, J.- There is no merit in this writ petition, The
writ petition is accordingly dismissed.
S. In my view, the writ petition challenging the validity of the order
and judgment passed by this Coon as nullity or otherwise incorrect cannot
be entertained. I wish to make it clear that the dismissal of this writ
petition will not prejudice the right of the petitioner, to approach the
Court with an appropriate review petition or to file any other application
which he may be entitled in law to fili .
t Uncier Article 32 of the Constitution of India

*From the Judplent and Order dated March 13, 1984 and March lf>, )984
of the Bombay Hlah Court in Special Case Nos. 14 of 1982 and 3 of 1983
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DHARMENDRA KUMAR SINGH v. STATE OF U.P. 93
0
(2021) 1 Supreme Court Cases 93
(BEFORE SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.)
a
DHARMENDRA KUMAR SINGH Appellant;
Versus
STATE OF UTTAR PRADESH AND OTHERS Respondents.
Civil Appeals No. 12202 of 2018t with Nos. 5093 of 2019+, 5257,
7002 of 2019 and 11368 of 2018, decided on October 28, 2020
b A. Mines and Minerals (Development and Regulation) Act, 1957 - Ss. 4
to 8-A and S. 15 - Fresh grant or extension of mining lease - Manner
in which permissible - Expression "in the interest of mineral development
it is necessary so to do..." occurring in R. 68 of the 1963 Mining Rules -
Interpretation and Applicability - Held, statutory provision of R. 68 of the
1963 Mining Rules is in the nature of a relaxation rule in special cases and has
C to be read with the Rules which provide the manner in which the exploitation
of minerals should take place - Thus, if a fresh grant or extension of a mining
lease has to be made under the Mining Rules, it must be in accordance with
Ch. II, and the provision for auction of leases in Ch. IV of the 1963 Mining
Rules is in furtherance of a transparent procedure - Extension of mining
lease cannot be granted by exercise of power under R. 68 of the 1963 Mining
Rules
d - Held, objective of exercising power under R. 68 of the 1963 Mining
Rules should be to aid development of minerals - Statutory rules have been
worded in a restrictive manner deliberately giving only a restricted window
and this legislative intent ought not to be defeated by supplanting it with any
other interpretation - When words of statutory rules or statutory provision
are clear and unambiguous, recourse to different principles of interpretation,
e other than rule of literal construction, cannot be resorted to - Interpretation of
Statutes - Basic Rules - Liberal or strict construction - U .P. Minor Minerals
(Concession) Rules, 1963, R. 68
B. Mines and Minerals (Development and Regulation) Act, 1957 - Ss. 4
to 8-A - Fresh grant or extension of mining lease - Manner in which
permissible - Fresh grant or extension of mining lease, held, can only be
f granted strictly in compliance with the Rules and Policy in force at the relevant
time - Disruption of mining operations by reason of judicial interdict -
Effect of - Maxim actus curiae neminem gravabit - When not applicable
- Held, disruption due to judicial interdict itself will not give window
to extend lease without compliance with statutory provisions, especially when
terms of lease and the Rules (1963 Mining Rules in present case) do not provide
for consequences of any judicial interdict or other reason for disruption of
g operation of the lease, other than refund of security deposit and advance
royalties paid, if any - As leases in present case were prevented from
operation for no fault attributable to leaseholders, held, they were entitled to
refund of security deposit and advance royalty paid, with 9% interest
t Arising from the Judgment and Order in All India Kalmur People's Front v. State of U.P., 2018
h SCC OnLine NGT 1514 (National Green Tribunal, OA No. 429 of 2016, dt. 13-7-2018)
:j: Arising from the Judgment and Order in Amit Pandey v. State of U.P., 2019 SCC OnLine NGT
1403 (National Green Tribunal, OA No. 781 of 2018, dt. 25-3-2019)
�cccc
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- In the event of disruption of mining operation in lease area owing to any
special circumstances all that the statute has provided is monetary adjustment
i.e. that if some amounts have been paid as instalments under mining lease for a
the period when beneficiary is not able to operate mining area, only that amount
is liable to be refunded - However, appellants in instant case have suffered
and plea advanced on their behalf was that if there were interdicts posed by a
competent court that should not put a party at a disadvantage - This rule is
ordinarily to be accepted for placing a successful party in the same position,
which they had been in, if the wrong complained against them would not have b
been done to them - However, this cannot be a blanket proposition and the
context has to be considered in which interdict was passed i.e. to preserve forest
area - It is a different matter that some leases were ultimately found as within
restricted area and some outside (as is the case of the appellants)
- Even taking Notification of State of U.P. dt. 31-7-2014 into account,
and authorisation of District Magistrates to extend lease where no third-party C
interest was created and the leases were prevented from operation for no fault
attributable to leaseholders, held, subsequent transparent New Mining Policy
of 2017 would weigh in favour of not exercising jurisdiction to extend leases
for obstructed period - Thus the appropriate course of action to be adopted in
this case cannot be to extend lease for obstructed period but to direct that the
security deposit, if not already refunded, should be refunded and the amount d
deposited by appellants/leaseholders as advance royalties to respondent State
be also paid back to them along with something more
- Environment Law - Environment (Protection) Act, 1986 - Ss. 6 and
25 - Forest Act, 1927 - Ss. 4 and 20 - Debt, Financial and Monetary
Laws - Interest - Restitutionary interest - Refund of security deposit and
advance royalty paid when leases prevented from operation due to no fault e
of leaseholders - Entitlement to interest thereon - U.P. Minor Minerals
(Concession) Rules, 1963, Rr. 68 and 40(h)
It was contended by the State of U.P. that no permission for mmmg can
be granted for the obstructed period as there does not exist any provision for
f
grant of such permission for mining in case of disruption of mining operations
under the U.P. Minor Minerals (Concession) Rules, 1963 ("the Mining Rules").
It is also contended that there was no legal provision/rule or any provision in
the respective lease deeds to pay damages in case of disruption of mining leases
and the consequences of such disruption are set out in Rule 40(h) of the Mining
Rules. As per Rule 40(h) of the Mining Rules in the event of disruption of mining
operations in the leased areas owing to any special circumstances, the DM, with the
g
prior approval of the State Government shall adjust the amount equivalent to the
instalment payable during the disrupted period against the forthcoming instalment.
Thus, it was contended that the State ofU.P. is only liable to refund (i) any security
deposit, or (ii) advance royalties paid to it. It was emphasised that in view of the
judicial pronouncement in Vijay Kumar Dwivedi, 2016 SCC OnLine All 3548 it
is clear that after 31-5-2012, no permission for mining can be granted to excavate h
during the obstructed period. In the absence of any provision under the Mining
�cccc
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DHARMENDRA KUMAR SINGH v. STAT E OF U.P. 95

Rules for grant of extension of expired mining lease or renewal of the same for the
obstructed period in case of disruption to mining operation, any extension of lease
a was contended to be unsustainable in law.
The AIKPF contended that the prohibition of mining in ESZ declared around
the Kaimur National Park was not being challenged by the appellants, hence
the consequences of mining activity for the obstructed period did not facilitate
extension of leases. The aspect arising from the G.O. dated 31-5-2012 and the
contentions of the State Government in that behalf was also sought to be supported
b by the observations of the Supreme Court in Deepak Kumar, (2012) 4 SCC 629
which in turn had extracted the recommendations of the Ministry of Environment
and Forest regarding the definition of the term "minor mineral", which it said
meant building stone, gravel, ordinary clay, ordinary sand other than sand used for
prescribed purposes and any other material which the Central Government may, by
notification declare to be a minor mineral.
C
The plea of the State of non-grant of extension of leases is stated by the
appellants to be contrary to record as that power has been exercised in the past
under Rule 68 of the Mining Rules. Rule 68, it was urged, is comprehensive and
complete in all respects and in the absence of any specific legislation recourse can
be had to the said Rule. On a linked aspect it was contended that the ordinary rule
is that the Court should try to place the successful party in the same position which
d they had been in, if the wrong complained against them would not have been done
to them. Moreover, it was argued that, it is a well-settled proposition of law that
an act of the Court shall prejudice no one and the same is reflected in the maxim,
"Actus curiae neminem gravabif'.
It was contended that factual matrix dealt with the issue of extension of mining
leases and the State ofU.P. had issued a Notification dated 31-7-2014 to all DMs
e
stating wherever no third-party interest had been created, the area is vacant and it
is established that the leaseholder has been prevented from operating its mining
lease for any period for no fault attributable to them, then the extension of mining
lease for the corresponding period can be provided. The appellants plead that the
G.O. dated 31-5-2012 and for that matter the New Mining Policy of 2017 will have
no bearing as that aspect stands elucidated vis-a-vis the judgment in Peethambra
f
Granite (P) Ltd., 2020 SCC OnLine All 1399 by the High Court of Judicature at
Allahabad. In this case, the directions issued in Vijay Kumar Dwivedi, 2016 SCC
OnLine All 3548 have been held to have no application to granite building stone (in
situ rock) as the mineral was not covered by the G.O. dated 31-5-2012. This aspect
is stated to have been clarified by the subsequent G.O. dated 26-2-2013 and the
G.O. dated 22-10-2014, the latter, in fact, cancelled the G.O. dated 31-5-2012 as
g also the G.O. dated 26-2-2013. Since 31-5-2012 itself, a total of 35 mining leases
are stated to have been granted or renewed in District Sonbhadra.
The issues for determination before the Supreme Court were:
(i) Whether disruption of mining operations by reason of a judicial
interdict itself will give window to extend the lease by not following the
h statutory provisions, especially when the terms of the lease do not provide for
any consequences thereof.
�cccc
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(ii) If the leases were prevented from operation for no fault attributable to
the leaseholders, what should be appropriate course of action to be adopted by
the Supreme Court. a
Held:
A mere filing of an application either for the grant of a lease or for the renewal
of a lease does not confer a vested right for either grant or renewal of a lease.
The statutory provision of Rule 68 of the Mining Rules is in the nature of a
relaxation rule in special cases and has to be read with the Rules which provide
b
the manner in which the exploitation of minerals should take place. Thus, the
expression used is "in the interest of mineral development it is necessary so to
do ...". The idea, thus, is that the objective of exercising such power should be
to aid the development of minerals and such judicial view is of significance as
there was always a possibility of the misuse of such power, considering the history
of mineral exploitation in our country. The statute was worded in a restrictive
C
manner deliberately giving only a restricted window and this legislative intent
ought not to be defeated by supplanting it with any other interpretation. It is a well
settled principle of interpretation that when the words of a statute are clear and
unambiguous, recourse to different principles of interpretation, other than the rule
of literal construction, cannot be resorted to. If a fresh grant or extension has to be
made under the Mining Rules, it must be in accordance with Chapter II, and the d
provision for auction of leases in Chapter IV of the Mining Rules is in furtherance
of a transparent procedure. (Para 36)
DTC v. Balwan Singh, (2019) 18 SCC 126, relied on
Sukhan Singh v. State of U.P., 2014 SCC OnLine All 14627 : (2015) 2 All LJ 619; Mohd.
Yunus Hasan v. State of U.P., 2016 SCC OnLine All 3535: (2016) 4 All LJ 4; Vzjay Kumar
Dwivedi v. State of U.P., 2016 SCC OnLine All 3548: (2016) 4 All LJ 690, approved
e
The right to extension of lease either flows from a statutory provision or from
the terms of the lease between the parties concerned. If there has been an obstructed
period by reason of a judicial interdict, that itself will not give window to extend
the lease by not following the statutory provisions, especially when the terms of
the lease do not provide for any consequences thereof. (Para 37)
The G.O. dated 31-5-2012 was clarified by the subsequent G.O. f
dated 26-2-2013 and then both the G.Os. were cancelled vide G.O.
dated 22-10-2014, which would hold the field. In pursuance thereof, 35 mining
leases are stated to have been issued but that itself would not make a difference
because what is to be seen are the subsequent developments and what course can be
adopted as on date. The State ofU.P. had issued a New Mining Policy on 12-6-2017
and this policy has no provision for grant of extension of time for obstructed g
period of mining lease and all mining leases were to be permitted by e-tendering or
e-auction alone. If the mining lease is extended for the obstructed period, it would
amount to violation of this New Mining Policy and since the extension would have
to be granted now, the contention of the appellants that this should relate back to
the date of the lease and not as on date, cannot be accepted. (Paras 39 and 40)
h
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DHARMENDRA KUMAR SINGH v. STATE OF U.P. 97

The statutory rule, Rule 40(h) of the Mining Rules provides for the
consequences of the disruption of mining operations in a lease area owing to any
a special circumstances and requires the DM, with the prior approval of the State
Government, to adjust the amount equivalent to the instalments payable during the
disrupted period against forthcoming instalments. Thus, monetary adjustment is all
that has been provided for by the statute making the legislative intent obvious i.e.
that if some amounts have been paid as instalments under the mining lease for the
period when the beneficiary is not able to operate the mining area, only that amount
b is liable to be refunded. This is what forms the basis of the submission made on
behalf of the State ofU.P. that they are only liable to refund (i) any security deposit;
or (ii) advance royalties paid to them, for this obstructed period. (Para 41)
The appellants have suffered in the second round and the plea advanced on
their behalf that if there were interdicts posed by a competent court that should
not put a party at a disadvantage. This rule is ordinarily to be accepted for placing
C a successful party in the same position, which they had been in, if the wrong
complained against them would not have been done to them. However, this cannot
be a blanket proposition and we have to consider the context in which the interdict
was passed i.e. to preserve the forest area. It is a different matter that some leases
were ultimately found as within the restricted area and some outside (as is the case
of the appellants). Even if the Notification of the State ofU.P. dated 31-7-2014 is
d taken into account, and the authorisation of the DMs to extend the lease where no
third-party interest was created and the leases were prevented from operation for
no fault attributable to the leaseholders, the subsequent transparent Policy of 2017
would weigh in favour of not exercising the jurisdiction to extend the leases for the
obstructed period. (Para 42)
Beg Raj Singh V. State of U.P, (2003) 1 sec 726; Nar Narain Mishra V. State of U.P,
e 2013 SCC OnLine All 13919; Sulekhan Singh & Co. v. State of U.P, (2016) 4 SCC 663,
considered
Thus, the appropriate course of action to be adopted in this case cannot be to
extend the lease for the obstructed period but to direct that the security deposit,
if not already refunded, should be refunded and the amount deposited by the
f appellants/leaseholders as advance royalties to the respondent State be also paid
back to them along with something more. Keeping in mind that the appellants'
monies have remained blocked and mining prevented for no fault of theirs, despite
success in earlier legal proceedings, and this aspect has to be balanced with the
statutory provision or for that matter, even the contractual provisions not providing
for extension of leases, and since these monies have remained blocked, the monies
g should carry simple interest @ 9% p.a. (Paras 43 and 44)
The appeals are, thus, decided as aforesaid with the limited directions and to
the extent the observations in the impugned order are in contradiction thereto are
set aside. (Para 46)
J.P Yadav v. Kanhaiya Singh, (2021) 1 SCC 116, impliedly distinguished and not followed
All India Kalmur People's Front v. State of U.P, 2018 SCC OnLine NGT 1514; Amit Pandey
h v. State of U.P, 2019 SCC OnLine NGT 1403, partly reversed and modified
�cccc
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Jagdish Prasad Nishad v. State of U.P., 2015 SCC OnLine All 7495 : (2015) 128 RD 150,
impliedly overruled
T.N. Godavarman Thirumulpad v. Union of India, 2016 SCC OnLine NGT 1187; Banwasi
Seva Ashram v. State of U.P., (1986) 4 SCC 753; Ved Prakash Garg v. Addl. District & a
Sessions Judge, WP No. 29546 of 2003, order dated 14-2-2006 (All); State of U.P. v. Ved
Prakash Garg, 2018 SCC OnLine SC 3631, considered
Deepak Kumar v. State of Haryana, (2012) 4 SCC 629; Qaiser Shikoh v. All India Kaimur
Peoples Front, 2018 SCC OnLine SC 3632; Dharmendra Kumar Singh v. State of U.P., 2018
SCC OnLine SC 3633; Dharmendra Kumar Singh v. State of U.P., 2020 SCC OnLine SC
890; Dharmendra Kumar Singh v. State of U.P., 2020 SCC OnLine SC 891; Vilayati Ram
Mittal v. State of U.P., 2016 SCC OnLine SC 1896; Peethambra Granite (P) Ltd. v. State b
of U.P., 2020 SCC OnLine All 1399; State of U.P. v. All India Kalmur Peoples Front, 2020
SCC OnLine SC 892, referred to
RM-D/66404/C
Advocates who appeared in this case
C
V. Shekhar, Mukul Rohatgi, S.P. Singh and Ranjit Kumar, Senior Advocates, for the
appearing parties.
Chronological list of cases cited on page(s)
1. (2021) 1 SCC 116, J.P. Yadav v. Kanhaiya Singh 109g, 110a, ll0a-b
2. 2020 SCC OnLine All 1399, Peethambra Granite (P) Ltd. v. State of U.P. ll0e-f
3. 2020 SCC OnLine SC 892, State of U.P. v. All India Kalmur Peoples Front 11lc
4. 2020 SCC OnLine SC 891, Dhannendra Kumar Singh v. State of U.P. l05b-c
5. 2020 SCC OnLine SC 890, Dharmendra Kumar Singh v. State of U.P. 104g d
6. (2019) 18 SCC 126, DTC v. Balwan Singh 112g
7. 2019 SCC OnLine NGT 1403, Amit Pandey v. State of U.P. (partly reversed) lOld-e
8. 2018 SCC OnLine SC 3633, Dhannendra Kumar Singh v. State of U.P. l04d-e
9. 2018 SCC OnLine SC 3632, Qaiser Shikoh v. All India Kaimur
Peoples Front l04d-e
10. 2018 SCC OnLine SC 3631, State of U.P. v. Ved Prakash Garg 103g
11. 2018 SCC OnLine NGT 1514, All India Kalmur People's Front v.
e
State of U.P. (partly reversed) lOlc-d, 101d, lOld-e, l04a-b,
l05e, 105!, l05f-g, 11lg
12. (2016) 4 SCC 663, Sulekhan Singh & Co. v. State of
U.P. l06c-d, 108e, 114a-b
f
13. 2016 SCC OnLine All 3548: (2016) 4 All LJ 690, Vijay Kumar
Dwivedi v. State of U.P. 107a, 108a, ll0e-J, 113b
14. 2016 SCC OnLine All 3535: (2016) 4 All LJ 4, Mohd. Yunus Hasan
v. State of U.P. 106d, l07a-b, 112e
15. 2016 SCC OnLine SC 1896, Vilayati Ram Mittal v. State of U.P. 108e
16. 2016 SCC OnLine NGT 1187, T.N. Godavarman Thirumulpad v.
Union of India lO0a, l04a-b, l04b-c, 109!,
llle-f
17. 2015 SCC OnLine All 7495: (2015) 128 RD 150, Jagdish Prasad g
Nishad v. State of U.P. (impliedly overruled) 110a
18. 2014 SCC OnLine All 14627: (2015) 2 All LJ 619, Sukhan Singh v.
State of U.P. 106b, l 12d-e
19. 2013 SCC OnLine All 13919, Nar Narain Mishra v. State of
U.P. l06c-d, 108b, 108e, 108e-J,
114a h
20. (2012) 4 SCC 629, Deepak Kumar v. State of Haryana l09a-b
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DHARMENDRA KU MAR SINGH v. STATE OF U.P. (Sanjay Kishan Kaul, J.) 99

2 1. WP No. 29546 of 2003, order dated 14-2-2006 (All), Ved Prakash
Garg v. Addi. District & Sessions Judge l03e-f
22. (2003) 1 sec 726, Beg Raj Singh v. State of U.P. ll0b-c, 1 14c-d
a 23. ( 1986) 4 SCC 753, Banwasi Seva Ashram v. State of U.P. 103b-c, 104c-d,
106a, 109d, l09f
The Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.- An ideological battle often rages between
preservation of environment and economic development. Mining activity and
b
the manner in which it is carried on has had its proponents and opponents.
Its necessity as an input for economic development is recognised but mining
activity throughout our country for minerals or sands has had a troubled history
on account of large-scale violations. This has also resulted in a ban on mining
activity in certain areas at certain times-not the ideal method, but leaving little
C option open because of the rampant misuse of the licences to mine. The present
litigation, in a sense, flows from the concern to regulate mining activity in eco
sensitive areas.
The factual development
2. The fact flow of the present case shows that what we are faced with
d today has its seeds in prior litigation and orders passed in the past in the interest
of ecology, yet some persons who had succeeded in the initial battle to carry
out mining activity are faced with the consequences of orders passed in other
litigations. It is this conundrum, which would have to be resolved by this Court.
3. Mining leases granted to projects in the mineral rich district of
Sonbhadra, carved out of District Mirzapur in the State of Uttar Pradesh (for
e short "State of U.P.") in 1989 is the starting point. The All India Kaimur
People's Front (for short "AIKPF") filed an application before the National
Green Tribunal, New Delhi (for short "NGT"), being OA No. 429 of 2016, inter
alia, seeking directions for immediate prohibition of alleged illegal mining in
the vicinity of Kaimur Wildlife Sanctuary located in Village Billi Markundi in
f Sonbhadra District. The area being ecologically sensitive and preservation of
wildlife being the objective, the NGT issued notices in the matter.
4. In pursuance of this initial development, Notification dated 20-3-2017
was issued by the Ministry of Environment, Forest and Climate Change (for
short "MoEFCC") declaring the "area in question" as an eco-sensitive zone
(for short "ESZ") under sub-section (1) and clauses (v) and (xiv) of sub-section
g (2) and sub-section (3) of Section 3 of the Environment (Protection) Act, 1986
(hereinafter referred to as "EPA"). The State of U.P. set out the factual position
about the grant of leases before the NGT in an affidavit filed in this behalf.
Thirty-three leases were stated to be operational outside ESZ. NGT called
upon the State of U.P. to explain the position of these leases in view of the
order it had passed on 4-5-2016 in T.N. Godavarman Thirumulpad v. Union of
h
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lndia 1by way of which the NGT had directed the State of U.P. to cancel all
mining leases and all other non-forestry activities on the areas notified under
Section 4 of the Forest Act, 1927 (hereinafter referred to as "the Forest Act"). a
In order to appreciate the ramifications, Section 4 of the Forest Act is extracted
hereinunder:
"4. Notification by State Government.-( 1) Whenever it has been decided
to constitute any land a reserved forest, the State Government shall issue a
notification in the Official Gazette-
b
(a) declaring that it has been decided to constitute such land a reserved
forest;
(b) specifying, as nearly as possible, the situation and limits of such
land; and
C
(c) appointing an officer (hereinafter called "the Forest Settlement
Officer") to inquire into and determine the existence, nature and extent
of any rights alleged to exist in favour of any person in or over any land
comprised within such limits or in or over any forest-produce, and to deal
with the same as provided in this Chapter.
Exp lanation.-For the purpose of clause (b), it shall be sufficient to
describe the limits of the forest by roads, rivers, ridges or other well-known or
readily intelligible boundaries. d
(2) The officer appointed under clause (c) of sub-section (1) shall
ordinarily be a person not holding any forest-office except that of Forest
Settlement Officer.
(3) Nothing in this section shall prevent the State Government from
appointing any number of officers not exceeding three, not more than one
e
of whom shall be a person holding any forest-office except as aforesaid, to
perform the duties of a Forest Settlement Officer under this Act."
The purport of the notification is, thus, to specify as to what lies within the
limits of reserved forest area.
f
5. The NGT in the said proceedings noted the admission of the State of
U .P. that some active leases still remained in force on lands which were covered
under the Notification issued under Section 4 of the Forest Act for which the
corresponding notification under Section 20 of the Forest Act had still not been
issued. Section 20 of the Forest Act reads as under:
"20. Notification declaring forest reserved.-( ! ) When the following
events have occurred, namely- g
(a) the period fixed under Section 6 for preferring claims have elapsed
and all claims if any made under that section or Section 9 have been
disposed of by the Forest Settlement Officer;
h
1 20 1 6 SCC OnLine NGT 1 1 87
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DHARMENDRA KUMAR SINGH v. STATE OF U.P. (Sanjay Kishan Kaul, J.) 101
(b) if any such claims have been made, the period limited by
Section 17 for appealing from the orders passed on such claims has
a elapsed, and all appeals (if any) presented within such period have been
disposed of by the appellate officer or Court; and
(c) all lands (if any) to be included in the proposed forest, which the
Forest Settlement Officer has, under Section 11, elected to acquire under
the Land Acquisition Act, 1894 (1 of 1894), have become vested in the
Government under Section 16 of that Act,
b the State Government shall publish a notification in the Official Gazette,
specifying definitely, according to boundary-marks erected or otherwise, the
limits of the forest which is to be reserved, and declaring the same to be
reserved from a date fixed by the notification.
(2) From the date so fixed such forest shall be deemed to be a reserved
forest."
C
6. Thus, what had not been done was that the consequences of the area
falling in the reserved forest area in terms of Section 4 Notification did not
follow a Notification under Section 20 of the Forest Act. The NGT, thus,
directed vide order dated 13-7-20182 that all leases under Section 4 area be
prohibited by the State of U.P. forthwith. The review filed by the State of
d U.P. came to be dismissed vide order dated 29-8-2018. We may note at this
stage that what is impugned is the aforesaid order dated 13-7-20182 by the
appellants before us, except for the appellants in CA No. 5093 of 2019 where
order dated 25-3-20193 of the NGT has been impugned. However, this order
was also decided in terms of the main impugned order dated 13-7-20182 •
e 7. The fallacy, in our view, which occurred in the proceedings before the
NGT was that leaseholders of the leases were not made parties, not even in
a representative capacity, yet, they suffered the consequences of the aforesaid
order inasmuch as the District Magistrate (for short "DM"), Sonbhadra,
issued administrative orders (on 29-8-2018 and 5-2-2019) in pursuance of the
aforesaid order of the NGT prohibiting mining and transportation of gittis/
f boulders till the next order. This effectively stopped the mining activity. The
appellants naturally being aggrieved filed appeals before this Court as being
the affected parties under Section 22 of the National Green Tribunal Act,
2010 (hereinafter referred to as "the NGT Act") arraying the State of U.P., its
departments and officers concerned, MoEFCC, as well as AIKPF (the original
petitioners before the NGT) as the respondents. The appeals, inter alia, are
g predicated on the respective lands and corresponding leases being actually
excluded from the purview of the Notification issued under Section 4 of the
Forest Act, the lands in question being "pahadh lands" i.e. uncultivable waste
lands belonging to the Revenue Department.
2 All India Kalmur People's Front v. State of U.P. , 201 8 SCC OnLine NGT 1 5 1 4
3 Amit Pandey v. State of U. P. , 201 9 SCC OnLine NGT 1 403
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102 SUPREME COURT CASES (202 1 ) 1 sec

8. Since there are different appeals and different dates involved, for clarity
of facts , we are setting forth below the particulars of the lease details and the
suspension orders of the respective appellants as under: a
i Sl. Civil appeals Material Village Lease i Date of i
!
Nos. duration i suspension i
i order i
1. : CA No. 1 2202 of : Dolostone
i (boulder)/gitti i Markundi \ to 28-6-20 1 9 :
: B illi P9-6-2009 j 29-8-20 1 8
:.
! 20 1 8
.
j Dharmendra :j :: ::
b
i Kumar S ingh . :. :. j .
i 2. i CA No. 1 1 368 of i Dolostone i B illi i l 7-2-20 1 1 i 29-8-20 1 8 i
i \ 20 1 8 i (boulder)/gitti \ Markundi \ to 16-2-202 1 i i
i i Qaiser Shikoh i i i i i
: 3 . : CA No. 5257 of : Small s tone/ : B illi : 7-7-2009 : 29-8-20 1 8 :
C
i ! 20 1 9 i rntti/dolostone ) Markundi ho 6-7-20 1 9 ) i
i = nev Prakash i i ) (extended i i
i i i ) to l 0-3-2020) \ i
i Gov ind Agarwal i Small stone! l B illi i 1 4-7-2009 i 29-8-20 1 8 i
i l g itti/boulder/ ) Markundi ho 1 3 -7-20 1 9 i i
i i dolostone i i (extended i i
j j ) ) to l 7-3-2020) j j
i Bhanu Prakash i Small s tone/ i B illi i 7- 1 2-2008 \ 29-8-20 1 8 i d
i i:
:: i gitti/boulder/ ) Markundi ho 6-1 2-20 1 8 i i
i :. i dolostone i i (extended j i
i : i i i to 1 0-8-20 1 9) i i
j 4. i cA No. 5093 of ! Building stone ! B illi ! New lease ! 5 -2-20 1 9 j
i po 1 9 i( dolostone ) , i Markundi i through j i
i i Sa i Ram i khanda, grit, i i e-tender i i
i i Enterprises i boulder, e tc. i i process i i e
i i Neelkanth i i i 1 1 - 1 2-20 1 8 i i
i \ M in ing ( the only i i ho 1 0 - 1 2 -2028 1 i
i i claim in this civ il i i i i i
i i appeal since other i i i i i
i i lease periods have i i i i i
i i i i
f
\ no t started) i i
i i Gyanendra i i i i i
i \ Tr ipathi i i i i i
i i c. s . i i i i i
i i Infrasconstruction i i i i i
i i Amit Enterprises i i i i i
; ... ............... .; ... .................................. .......................... , ................................ ...................................................................................................................... ;.......................................... i
: 5. : CA No. 7002 of : Gitti/boulder : B illi : From : 29-8-20 1 8 :
i ! 20 1 9 i i Markundi b -3 -2007 i i
i i Krishnaanand i i i to 2-3-20 1 7 i i g
l:.......... : ................................................................
S ingh l: ............................ :: ..................... :: .................................................. :: .......................................... ::
Prior litigations
9. In order to appreciate the contention of the appellants, it would be
apposite to trace out two lines of leg al developments, which have arisen since
the issuance of notification under Section 4 of the Forest Act wherein lies h
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the genesis of the dispute. The first line of legal development arose from
Notification No. 3723/14-b-4(67)69 dated 5-11-1969 issued by the State of U.P.
a under Section 4 of the Forest Act. The Notification included in its compass
large tracts of land in Village Billi Markundi declaring that it has been decided
to constitute such land as reserved forest. The corresponding notification under
Section 20 of the Forest Act was to be issued. However, the 1969 Notification
came under scrutiny of this Court upon a letter being received from the Banwasi
Seva Ashram operating in Sonbhadra District highlighting the plight of the
b Adivasis living in the area and their related rights with respect to the land.
The adjudication resulted in a judgment being pronounced on 20-11-1986 in
Banwasi Seva Ashram v. State of U. P. 4 wherein a slew of directions were passed
relating, inter alia, to the land which had been notified under Section 4 of
the Forest Act but where no subsequent notification had been issued under
Section 20 of that Act. It was directed that the Forest Settlement Officer
C
(for short "FSO") shall scrutinise all claims and thereafter the matter be
placed before the Additional District Judge (for short "ADJ") as a suo motu
appeal. The State Government was required to give effect reserving such lands
under Section 20 of the Forest Act which were found to be covered under
Section 4 of the Forest Act. Claims were filed before the FSO (including those
d of the predecessors of the appellants herein) to be excluded from Section 4
Notification and they succeeded in the same. A decision was to be taken by
the ADJ as the appellate authority and the order passed by the said authority
on 30-9-1994 confirmed the findings of the FSO. The Forest Department
thereafter filed a large number of review petitions against that order, which
came to be allowed, albeit after a period of eight (8) years, in terms of the order
e dated 31-5-2003. Thus, the appellants/predecessors of the appellants before us
(who were affected parties in those proceedings) approached the High Court
by way of different writ petitions and all these petitions came to be allowed in
terms of the order in Writ Petition No. 29546 of 2003 titled Ved Prakash Garg
v. Add!. District & Sessions Judge 5 , which itself was deciding the grievance of a
large number of the claimants similarly placed as the appellants herein against
f
the order dated 31-5-2003. The view adopted was predicated on the stand of the
State of U.P. itself having taken a decision that the land in question be treated as
land belonging to the Revenue Department of the State and on which the mining
operations should be permitted. A direction was issued that the application for
renewal of mining leases be considered and the order dated 31-5-2003 was
set aside. An SLP against this order came to be dismissed by this Court on
22-11-2018, in State of U.P. v. Ved Prakash Garg 6 . The proceedings in respect
g
of exclusion of the subject land in question from the purview of Section 4 of
the Forest Act, thus, attained finality.
h 4 ( 1 9 86) 4 sec 75 3
5 WP No. 29546 of 2003, order dated 1 4-2-2006 (All)
6 201 8 SCC OnLine SC 363 1
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10. The second line of litigation pertains to events of 1 992 when the Uttar
Pradesh State Cement Corporation Ltd. (for short "U.P. SCCL") became a sick
industry and was put to auction where M/s Jayprakash Associates Ltd. (for a
short "JAL") emerged as the highest bidders. The significance of this event
is that it culminated in the order in T.N. Godavarman case 1 dated 4-5-20 1 6,
on which considerable reliance has been placed in the impugned order2 before
us. The assets purchased by JAL included a mining lease of 2 1 68 hectares
of area of which some portions were included within S ection 4 Notification
area. C laims were initiated by JAL praying for exclusion of the said lands from b
S ection 4 Notification. This matter came up to this Court, when in 20 1 0 it
was transferred to the NGT. The NGT passed a detailed judgment in this very
matter on 4-5 -20 1 6 1 with directions , inter alia, to the S tate of U .P. to cancel all
mining leases whether fresh or renewed and all other non-forestry activities on
the S ection 4 lands and to issue a notification under Section 20 immediately. C
The effect of these directions was that the finality of the settlement proceedings
concluded in terms of Banwasi Seva Ashram4 case was reiterated and urgency to
carry out the process under S ections 4 and 20 of the Forest Act was emphasised.
1 1 . The significance of the aforesaid two rounds of litigation assumes
importance in view of the reliance placed on them in the impugned order but
also by the appellants to buttress their claim that the procedure with reg ard to d
the leases in their favour came to be settled in terms thereof.
The current litigation
12. We now turn to the present civil appeals in which notices were issued 7 , 8
and the matters were clubbed. In the counter-affidavit dated 23-4-20 1 9 filed
by the S tate of U.P. the factual progression discussed aforesaid in respect of e
the land excluded from the purview of Section 4 was set out. The S tate of U.P.
also sought permission of the Court with respect to issuance of the notification
under S ection 20 for those lands , which did come under S ection 4 of the
Forest Act. The question was crystallised in the counter- affidavit as that if
f
the notification under Section 20 had not been issued and certain parts of the
lands covered under the notification under S ection 4 had been deleted by the
competent authorities (i.e. the F S O , thereafter ADJ, and finally the High Court)
whether such deleted lands shall be treated as non-forest lands without issuance
of notification under Section 20 of the Forest Act. As is the normal working , a
series of orders had to be passed by this Court due to delay on behalf of the Stale
of U .P. and it is only on 1 5-7 -2020 9 that this Court noted that the S ection 20 g
notification had finally been issued on 1 5 -6-2020. Thus, it was noted by this
1 T.N. Go davarman Thimmulpad v. Unio n of India, 20 1 6 SCC OnLine NGT 1 1 87

2 All India Kalmur People's Front v. State of U.P., 20 1 8 SCC OnLine NGT 1 5 1 4
4 Banwasi Seva Ashram v. State of U.P., (1 986) 4 SCC 75 3
7 Qaiser Shiko h v. All India Kaimur Peoples Front, 20 1 8 SCC OnLine SC 3632 h
8 Dharmendra Kumar Singh v. State of U.P., 20 1 8 SCC OnLine SC 3633
9 Dharmendra Kumar Singh v. State of U.P., 2020 SCC OnLine SC 890
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Court on that date that the only question now remaining to be determined was
with regard to the extension of leases for the period for which the mining leases
a of the appellants were not permitted to operate and sought the assistance/view
of the Stale of U.P. on this aspect.
1 3. The State respondents filed an additional affidavit dated 6-8-2020
setting forth its stand. It was contended by the State of U.P. that no permission
for mining can be granted for the obstructed period as there does not exist
any provision for grant of such permission for mining in case of disruption
b
of mining operations under the Uttar Pradesh Mining Minerals (Concession)
Rules, 1963 (hereinafter referred to as "the Mining Rules"). 9 a On 10-8-2020 1 0
while noticing the aforesaid and upon a query from the Court, the State of U.P.
conceded that it was willing to refund the proportionate amount of the lease
money, for which period the leases have not been permitted to operate. This
C was objected to by the appellants. Thus, the Court crystallised the issue to be
determined and the only aspect to be examined by this Court, as whether in
view of judicial pronouncements the appropriate order to pass would be for
refund of the lease amount for the period it was not permitted to operate, or
whether the leases are liable to be renewed for the period of obstructed time. It
is within the contours of the aforesaid proposition that the learned counsel for
d the parties have taken their stand, both in terms of the written synopses and by
making submissions in the Court.
The stand of the State of U.P.
1 4. The State of U.P. crystallised the factual issue by setting out that the
total number of permitted operational mining leases prior to the impugned order
e in the district in question were 82-64 leases in Village Billi Markundi and only
29 of such leases were covered by the impugned order2. The impugned order
resulted in 41 leases ceasing to exist/being banned and 29 leases out of them
have been covered by Section 20 notification. The notification had resulted in 5
out of 29 leases falling within the radices of 100 m of the forest land and out of
the remaining 24 leases, 12 have expired and 12 subsist. We are concerned with
f
the latter. The consequence of the impugned order2 and the order of the DM
was that the mining operations had been obstructed pursuant to the impugned
order dated 13-7-20182 till the issuance of the notification under Section 20 of
the Forest Act. The State of U.P. contended that it had only complied with the
impugned order and if these mining leases are now extended there would be
g consequences flowing to the State of U.P., on account of judicial orders. We
may notice that some of the leases expired during the obstructed period while
other leases have continued and thus in the latter cases the issue would only
be to further extend the lease for the obstructed period while in case of the
earlier situation permission would have to be given to mine for an extended
h 9a Framed under Section 1 5 of the Mines and Minerals (Development and Regulation) Act, 1 957.
10 Dhannendra Kumar Singh v. State of U.P., 2020 SCC OnLine SC 89 1
2 All India Kalmur People's Front v. State of U.P., 201 8 SCC OnLine NGT 1 5 1 4
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period relatable to the obstructed period. The delay on the part of the State of
U .P. in issuance of the Section 20 notification has been placed at the door of an
apprehension that it should not be construed as violative of the orders passed a
in Banwasi Seva Ashram case4 .
15. In what manner should such cases be dealt with, judicial opinions
expressed in this behalf have been sought to be referred to as a consistent view
of the Allahabad High Court in this behalf, being the local court dealing with
the aspect of mining leases in the cases:
b
15. 1 . In Sukhan Singh v. State of U.P. 1 1 an opinion was rendered that the
mere filing of an application either for the grant of a lease or for the renewal
of a lease does not confer a vested right for the grant or renewal of a lease
and, an application has to be disposed of on the basis of the rules as they stand
C
on the date of the disposal of the application. This was in the context of the
applicability of G.O. dated 31-5-2012 to pending applications seeking a fresh
lease or for renewal of a lease under Chapter II of the Mining Rules as decided
in Nar Narain Mishra v. State of U.P. 1 2 (This view received the imprimatur of
the Supreme Court in Sulekhan Singh & Co. v. State of U.P. 1 3)
15.2. In Mohd. Yunus Hasan v. State of U. P. 1 4 Rule 68 of the Mining Rules
dealing with the relaxation of applicability of the Mining Rules by the State d
Government was interpreted to determine the contours of the power which
could be exercised in terms of the said Rule. Rule 68 reads as under:
"68. Relaxation of ru les in special cases .-The State Government may,
if it is of opinion that in the interest of mineral development it is necessary so
to do, by order in writing and for reasons to be recorded, authorise in any case
the grant of any mining lease or the working of any mine for, the purpose of e
winning any minerals on terms and conditions different from those laid down
in these Rules."
The aspect of "interests of mineral development" was emphasised and it was
opined that the rule does not confer a power on the State to extend a lease
beyond the contracted period without adhering to the procedure under Chapters f
II (Grant of mining lease) and IV (Auction lease) of the Mining Rules. The
conclusion reached was that this Rule 68 could not be an aid to extend the
term of an expired lease to compensate any loss caused to such leaseholder, if
their lease has been terminated or curtailed during the subsistence period due
to an order of the competent authority. Moreover, the right to an extension of
lease must either flow from a statutory provision or from the terms of the lease g
between the parties concerned.
4 Banwasi Seva Ashram v. State of U. P. , (1 986) 4 SCC 75 3

11 20 1 4 SCC OnLine All 1 4627 : (2015) 2 All LJ 6 1 9
12 20 1 3 SCC OnLine All 1 39 1 9 h
13 c20 16) 4 s e c 663
14 20 1 6 SCC OnLine All 35 35 : (20 16) 4 All LJ 4
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15.3. In Vijay Kumar Dwivedi v. State of U.P. 15 the validity of permission
granted by the State Government to leaseholders to continue with the
a excavation for the period during which they were obstructed/restrained from
carrying out such activities during the subsistence of their leases due to orders
of the High Court or of the competent authorities was examined. Relying upon
the observations in Mohd. Yunus Hasan case 1 4 , the Allahabad High Court
directed that no person shall be permitted to excavate minor minerals on the
basis of lease deeds or permission granted subsequent to G.O. dated 31-5-2012
b under the garb of renewal of an expired lease, extension of lease, grant of a fresh
lease, or permission to excavate during the obstructed period. Additionally, no
Form MM-11 shall be issued in favour of any person with an expired lease or
an order be granted subsequent to 31-5-2012 in their favour for excavation of
minor minerals in the name of renewal of lease, extension of term of expired
C
lease, or permission for the obstructed period on the plea that a valid lease
was granted but excavation could not be carried for some days during the
subsistence period due to orders of the High Court/competent authorities. This
was so as the G.O. dated 31-5-2012 recorded a decision, which had been taken
in the interests of transparency and fair competition, to grant leases through the
e-tendering system by inviting tenders under Chapter IV of the Mining Rules.
d 16. In the conspectus of the aforesaid facts and judicial pronouncements,
the developments which have taken place post this situation were set out. The
State of U.P. issued a New Mining Policy on 12-6-2017. In terms of this policy
there is no provision for grant of extension of time for obstructed period of
mining lease and all mining leases were to be permitted by e-tendering or
e-auction alone.
17. It is also contended before us on behalf of the State of U .P. by learned
Senior Counsel, Mr V. Shekhar that there was no legal provision/rule or any
provision in the respective lease deeds to pay damages in case of disruption of
mining leases and the consequences of such disruption are set out in Rule 40(h)
of the Mining Rules, which reads as under :
f
"40. Liberties, powers and privileges of the lessee.- * * *
(h) In the event of disruption of mining operation in the lease area
owing to any special circumstances, the District Magistrate with the prior
approval of the State Government shall adjust the amount equivalent to
the instalment payable during the disrupted period, online against the
forthcoming instalment."
g
Thus, in the event of disruption of mining operations in the leased areas
owing to any special circumstances, the DM, with the prior approval of the
State Government shall adjust the amount equivalent to the instalment payable
during the disrupted period against the forthcoming instalment. Thus, it was
14 Mo hd. Yunus Hasan v. State of U.P., 201 6 SCC OnLine All 35 35 : (20 1 6) 4 All LJ 4
1 5 201 6 SCC OnLine All 3548 : (20 1 6) 4 All LJ 690
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contended that the State of U .P. is only liable to refund (i) any security deposit,
or (ii) advance royalties paid to it.
18. It was emphasised that in view of the judicial pronouncement in Vijay a
Kumar Dwivedi case 1 5 it is clear that after 31-5-2012, no permission for mining
can be granted to excavate during the obstructed period. In the absence of any
provision under the Mining Rules for grant of extension of expired mining lease
or renewal of the same for the obstructed period in case of disruption to mining
operation, any extension of lease was contended to be unsustainable in law.
b
19. The sequitur to G.O. dated 31-5-2012 was pleaded to have been
explained in Nar Narain Mishra case 1 2 where the Allahabad High Court
observed that any submission that "imarti patthar or building stone" is not
covered by the G.O. dated 31-5-2012 cannot be accepted. This was predicated
on the reasoning that the G.O. did not confine itself to the word "boulder"
found in riverbeds as the same can be used for minerals found in riverbeds as C
well as those found in "in situ rock deposit". This was also stated to be evident
from Schedules I and II of the Mining Rules which make it clear that the word
"boulder" is included in the heading of "building stone" as well as found in a
mixed form in the riverbed. Item 5 of Schedule I and Item 4 of Schedule II both
use the word "boulder" as building stones as well as when found in a mixed
form in riverbeds. d
20. The High Court, thus, passed directions rejecting the prayers made for
consideration of applications for renewal of mining leases which were pending
on 31-5-2012 and applications for grant of fresh leases under Chapter II of the
Mining Rules which were also pending on the same day. An SLP preferred
against this judgment 1 2 was dismissed on 4-3-2016 1 6 . Not only that, it was
emphasised that the Supreme Court itself in Sulekhan Singh case 1 3 approved
e
of the decision in Nar Narain Mishra case 1 2 .

21 . The concluding argument was that the aforesaid position leaves no
manner of doubt that the appellants were not entitled to any extension or
f
renewal of their old leases and at the most are entitled to refund of their
respective lease amounts for the period for which the leases were not permitted
to operate, an aspect which has already been conceded on behalf of the State
Government in the proceedings dated 10-8-2020. Thus, the permission sought
by the appellants for operating the expired mining lease for the obstructed
period was strongly opposed, leaving it for the appellants to file an application
under Rule 40(h) if the amount is to be refunded or adjusted.
g
22. We may note the supporting arguments of AIKPF qua the impugned
order of the NGT, which drew our attention to the prohibition of mining in
ESZ declared around the Kaimur National Park and that not being challenged
15 V(iay Kumar Dwivedi v. State of U.P., 20 1 6 SCC OnLine All 3548 : (20 1 6) 4 All LJ 690
12 Nar Narain Mishra v. State of U.P., 201 3 SCC OnLine All 1 39 1 9 h
Sulekhan Singh & Co. v. State of U.P., (20 16) 4 SCC 663
16 Vilayati Ram Mittal v . State of U.P., 20 1 6 SCC OnLine SC 1 896
13
�cccc
-----------------------------------------------------------------------------------------------------------------------------------------------------------
by the appellants and hence the consequences of mining activity for the
obstructed period did not facilitate extension of leases. The aspect arising
a from the G.O. dated 31-5-2012 and the contentions of the State Government
in that behalf were also sought to be supported by the observations of the
Supreme Court in Deepak Kumar v. State of Haryana 1 7 which in turn had
extracted the recommendations of the Ministry of Environment and Forest
regarding the definition of the term "minor mineral", which it said meant
building stone, gravel, ordinary clay, ordinary sand other than sand used for
b prescribed purposes and any other material which the Central Government may,
by notification declare to be a minor mineral. 1 73
The appellants ' case
23. The contentions of the appellants, on the other hand, led by the learned
Senior Counsel, Mr Mukul Rohatgi and Mr S.P. Singh are predicated on the
C settlement of the controversy in question in the aforementioned prior rounds of
litigation which came up right to this Court and the appellants had succeeded
in the same. The land for which mining leases were granted to the appellants
were excluded from the purview of the Section 4 notification in pursuance of
the settlement proceedings concluded as per the directions in Banwasi Seva
Ashram case4 . These settlement proceedings are pleaded to have been ignored
d
while passing the impugned order and that too without notice to the appellants.
24. The appellants plead that suspension of the mining leases is not
on account of any factor attributable to them i.e. there is no illegal mining
or any such factor, which may weigh against the appellants. The delay in
issuance of the Section 20 notification was solely because of the delayed
e State action, and the issue was finalised only on 15-6-2020 whereby the land
categorised as revenue land was excluded from the purview of forest land.
The appellants alleged to have suffered for no fault of theirs but on account
of the litigation initiated behind their back and the inaction of the State. This
was, it was contended, a "third chapter of litigation" on the very question of
the consequences of Section 4 notification - the first round in pursuance of
f
Banwasi Seva Ashram case4 right up to this Court and then the exclusion claim
of JAL which culminated in the order of the Tribunal dated 4-5-2016 1 , which
it was contended, would have no bearing on their leases.
25. The plea of the State of non-grant of extension of leases is stated to be
contrary to record as that power has been exercised in the past under Rule 68
g of the Mining Rules. Illustratively, two judgments have been referred to where
such extension of lease is recognised: J.P. Yadav v. Kanhaiya Singh 1 8 and
1 7 (20 1 2) 4 sec 629

4 Banwasi Seva Ashram V . State of U.P., (1 986) 4 sec 753
1 7a Section 3(e) of the Mines and Minerals (Development and Regulation) Act, 1957.
l T.N. Godavannan Thirumulpad v. Unio n of India, 20 1 6 SCC OnLine NGT 1 1 87

h
1 s (202 1 ) 1 sec 1 1 6
�cccc
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Jagdish Prasad Nishad v. State of U. P. In J.P. the Supreme C ourt
1 9. Yadav 1 8 ,
observed that Rule 68 confers upon the State the powers to extend lease for
the obstructed period and subsequently in Jagdish Prasad Nishad 1 9 , the High a
Court reiterated that any different view taken with respect to Rule 68 and the
powers it confers on the State would be in violation of the observations of the
Supreme C ourt in J.P. Yadav 1 8 . Rule 68, it was urged, is comprehensive and
complete in all respects and in the absence of any specific legislation recourse
can be had to the said Rule.
b
26. On a linked aspect, keeping in mind the predicament that the appellants
find themselve s in on account of C ourt orders , the learned counsel relied upon
the observations in Beg Raj Singh v. State of U. P. 20 for the proposition that the
ordinary rule is that the C ourt should try to place the succe ssful party in the
C
same position which they had been in, if the wrong complained ag ainst them
would not have been done to them. Moreover, it was argued that, it is a well
settled proposition of law that an act of the C ourt shall prejudice no one and the
same is reflected in the m axim, "Actus curiae neminem gravabit" . The factual
matrix de alt with the same issue of extension of mining lease s and in pursuance
of the judgment, the State of U.P. had issued a Notification dated 3 1 -7 -20 1 4
to all DMs stating that the judgment m akes it clear that wherever no third
party interest had been created, the are a is vacant and it is established that the d
le aseholder has been prevented from operating its mining lease for any period
for no fault attributable to them, then the extension of mining le ase for the
corre sponding period can be provided. The case of the appellants is submitted
to squarely fall within the afore said compass.
27. The appellants ple ad that the G.O. dated 3 1 -5-20 1 2 and for that matter e
the New Mining Policy of 20 1 7 will have no bearing as that aspect stands
elucidated vis-a-vis the judgment in Peethambra Granite (P) Ltd. v. State of
U. P. 2 1 by the High C ourt of Judicature at Allahabad. In this case , the directions
issued in Vijay Kumar Dwivedi case 1 5 have been held to have no application
f
to granite building stone (in situ rock) as the mineral was not covered by
the G.0. dated 3 1 -5-20 1 2. This aspect is stated to have been clarified by the
subsequent G.O. dated 26-2-20 1 3 and the G.O. dated 22- 1 0-20 1 4, the latter,
in fact, cancelled the G.O. dated 3 1 -5-20 1 2 as also the G.O. dated 26-2-20 1 3.
Since 3 1 -5-20 1 2 itself, a total of 35 mining leases are stated to have been
granted or renewed in District Sonbhadra.
28. We may add that Mr Ranjit Kumar, learned Senior C ounsel, advanced g
the additional plea of G.O. dated 3 1 -5-20 1 2 not being applicable on account of
the lease being granted prior to that date in 20 1 2.
19 20 1 5 SCC OnLine All 7495 : (20 1 5 ) 1 28 RD 1 50

18 J.P. Yadav v. Kanhaiya Singh, (202 1 ) 1 SCC 1 1 6
20 c2003) 1 sec 726 h
21 2020 SCC OnLine All 1 399
15 VUay Kumar Dwivedi v. State of U.P. , 20 1 6 SCC OnLine All 3548 : (20 1 6) 4 All LJ 690
�cccc
-----------------------------------------------------------------------------------------------------------------------------------------------------------
29. On the aspect on which a court query was posed i.e. if this Court
is not agreeable to renew the leases, what could be the method of grant
a of compensation, calculations have been filed by the appellants. Losses are
stated to include idling of machinery and other infrastructure , the payment of
salaries, providing staff accommodation as also the costs of litigation as part
of calculation of compensation.
30. We may note in the end that one of the pleas advanced was that the
State Government itself had not been satisfied with the impugned order and
b
had preferred Civil Appeals Nos. 8804-805 of 20 1 9. However, when this fact
was pointed out to Mr V. Shekhar, learned S enior Counsel, on instructions ,
sought to withdraw the appeal stating that whatever be the grievance against
the impugned order, the same did not survive and that the S tale Government
was not desirous of pursuing the appeal. The appeal was, thus, dismissed as
C withdrawn on 29-9-2020 22 and the judgment was reserved in these appeals.
The path we take
3 1 . We have given considerable thought to the issue at hand, keeping in
mind the past litigation, the statutory provisions and the narrow compass in
which we have to examine the issue at hand.
d 32. There is no doubt that the prior rounds of litigation resulted in orders
favouring the appellants. The present round of litig ation, however, arose on
account of an endeavour to prevent alleged illegal mining in the vicinity of
the Kaimur Wildlife S anctuary located in Village Billi Markundi in S onbhadra
District. The Notification dated 20-3-20 1 7 of MoEFCC declared the "area in
question" as an ESZ under the provisions of the EPA. The sequitur was that the
e State of U.P. placed before the NGT the factual position relating to the grant
of leases and according to them, there were stated to be 33 leases operational
outside the ESZ. The NGT wanted to examine this on account of the orders
passed on 4-5-20 1 6 in T.N. Godavarman Thirumulpad 1 case for cancellation
of all mining leases and all other non-forestry activities on areas notified under
f Section 4 of the Forest Act. The whole object was to find out as to what lay
outside of the reserved limit of the forest area and it was found that there
were some active leases still in force on the lands which were covered under
the notification issued under Section 4 of the Forest Act. B ut despite this,
the notification under S ection 20 of the Forest Act had not been issued. The
directions which arose from the impugned order of the NGT on 1 3-7-20 1 8 2 ,
g were towards this obj ective .
33. We have already noted that the leaseholders were, however, not made
parties, not even in a repre sentative capacity. This is the reason that these
aspects could not be examined with the assistance of the appellants by the NGT,
h 22 State of U.P. v. All India Kalmur Peoples Front, 2020 SCC OnLine SC 892
l T.N. Godavannan Thirumulpad v. Unio n of India, 20 1 6 SCC OnLine NGT 1 1 87
2 All India Kalmur People's Front v. State of U.P., 201 8 SCC OnLine NGT 1 5 1 4
�cccc
-----------------------------------------------------------------------------------------------------------------------------------------------------------

and the mining activity was stopped resulting in the appeals before us. We, thus,
called upon the State of U.P. to perform their statutory duty of issuance of the
Notification under Section 20 of the Forest Act and after some delay, the same a
was issued only on 1 5 -6-2020. It is only at that stage that the leases which were
not covered, as in the case of the appellants, had a final clarity and the issue,
received a closure. However, this did prevent the mining activity till then, from
the time it was banned by the NGT. In the meantime, there are leases which
have expired and there are other leases which are still in force as is apparent
from the detailed chart which we have set out at the inception of our judgment. b
34. Insofar as the question whether to adopt the course of extending the
leases for the obstructed period or in some way compensating the appellants for
the same, is what was debated and we have already noted the rival contentions
of the two parties.
35. We have, at the inception, stated that we are conscious of the statutory C
provisions and, thus, would not like to infringe the same, apart from the fact that
it may not be an appropriate course of action as it may open other floodgates
as if these rounds are not enough !
36. The judicial opinions referred to by the learned counsel for the State
of U .P. no doubt lead to a more or less consistent view that a mere filing of
d
an application either for the grant of a lease or for the renewal of a lease does
not confer a vested right for either grant or renewal of a lease (Sukhan Singh
case 1 1 ). The statutory provision of Rule 68 of the Mining Rules, which has
been strongly relied upon by the learned counsel for the appellants, is in the
nature of a relaxation rule in special cases and has to be read with the Rules
which provide the manner in which the exploitation of minerals should take e
place (Mohd. Yunus Hasan case 14 ) . Thus, the expression used is "in the interest
of mineral development it is necessary so to do . . . ". The idea, thus, is that the
objective of exercising such power should be to aid the development ofminerals
and such judicial view is of significance as there was always a possibility of
f
the misuse of such power, considering the history of mineral exploitation in
our country. The statute was worded in a restrictive manner deliberately giving
only a restricted window and this legislative intent ought not to be defeated
by supplanting it with any other interpretation. It is a well-settled principle
of interpretation that when the words of a statute are clear and unambiguous,
recourse to different principles of interpretation, other than the rule of literal
construction, cannot be resorted to. 23 If a fresh grant or extension has to be
g
made under the Mining Rules, it must be in accordance with Chapter II, and the
provision for auction of leases in Chapter IV is in furtherance of a transparent
procedure.
1 1 Sukhan Singh v. State of U.P., 20 14 SCC OnLine All 1 4627 : (201 5) 2 All LJ 6 1 9 h
1 4 Mo hd. Yunus Hasan v. State of U.P., 20 1 6 SCC OnLine All 3535 : (20 1 6) 4 All LJ 4
23 DTC v. Balwan Singh, (20 1 9) 1 8 SCC 1 26
�cccc
-----------------------------------------------------------------------------------------------------------------------------------------------------------
DHARMENDRA KU MAR SINGH v. STATE OF U.P. (Sanjay Kishan Kaul, J. ) 1 13

37. We do find ourselves in agreement with the submission of the learned
counsel for the State that the right to extension of lease either flows from a
a statutory provision or from the terms of the lease between the parties concerned.
If there has been an obstructed period by reason of a judicial interdict, that
itself will not give window to extend the lease by not following the statutory
provisions, especially when the terms of the lease do not provide for any
consequences thereof.
38. We may notice that this view has been adopted by the Allahabad
b
High Court in Vijay Kumar Dwivedi case 1 5 where the same question was
examined. The leaseholders were obstructed/restrained from carrying out the
mining activity during the subsistence of their leases upon the orders of the
High Court or of the competent authority. The High Court adopted the view
that after the issuance of the G . O . dated 3 1 -5-20 1 2 this could not be done.
C 39. We are conscious of the fact that the G. O. dated 3 1 -5-20 1 2 also finds
elucidation in certain other judicial pronouncements and that this aspect was
clarified by the subsequent G. O. dated 26-2-20 1 3 and then both the G. Os.
were cancelled vide G.O. dated 22- 1 0-20 1 4, which would hold the field. In
pursuance thereof, 35 mining leases are stated to have been issued but that itself
would not make a difference because we have to see what are the subsequent
d developments and what course to adopt as on date. Even if we consider the
interpretation sought to be put forth by the learned S enior Counsel for the
appellants of an expanded view of Rule 68, giving power to the S tate to extend
the lease for the obstructed period, would it now be exercisable is the que stion.
40. The State of U.P. had issued a New Mining Policy on 1 2-6-20 1 7 and
e this policy has no provision for grant of extension of time for obstructed period
of mining lease and all mining leases were to be permitted by e-tendering or
e-auction alone . If the mining lease is extended for the obstructed period, it
would amount to violation of this New Mining Policy and since the extension
would have to be granted now, we are unable to accept the contention of the
learned Senior Counsel for the appellants that this should relate back to the date
f of the lease and not as on date .
4 1 . We may also notice that the statutory rule , Rule 40(h) of the
Mining Rules , extracted in para 1 7 itself, provides for the consequence s of
the disruption of mining operations in a lease area owing to any special
circumstances and requires the DM, with the prior approval of the S tate
Government, to adjust the amount equivalent to the instalments payable
g during the disrupted period ag ainst forthcoming instalments. Thus, monetary
adjustment is all that has been provided for by the statute making the legislative
intent obvious i.e. that if some amounts have been paid as instalments under
the mining lease for the period when the beneficiary is not able to operate the
mining area, only that amount is liable to be refunded. This is what forms the
h basis of the submission made on behalf of the S tate of U.P. that they are only
15 V(iay Kumar Dwivedi v. State of U.P., 201 6 SCC OnLine All 3548 : (20 1 6) 4 All LJ 690
�cccc
-----------------------------------------------------------------------------------------------------------------------------------------------------------
1 14 SUPREME COURT CASES (2021) 1 sec

liable to refund ( i) any security deposit; or (ii) advance royalties paid to them,
for this obstructed period - something to which the S tate of U.P. has already
by the High Court in Nar Narain Mishra case 1 2 no doubt was in the context of
consented before us as recorded in our order dated 1 0-8-2020. The view taken a
the applicability of the G.0. dated 3 1 -5-20 1 2 and received the imprimatur of
the S upreme Court in Sulekhan Singh case 1 3 . B ut we have also to note that the
observations dealt with the issue also on the submission advanced that "imarti
patthar or building stone" is not covered by the G.0. dated 3 1 -5-20 1 2 and that
contention was not accepted. The word "boulder" was held to be included in the b
heading of "building stone" as well as when found in a mixed form in riverbeds
and the prayer of the leaseholder was not accepted.
42. We are conscious of the fact, as already noticed, that the appellants
have suffered in the second round and the plea advanced on their behalf that
C
if there were interdicts posed by a competent court that should not put a
party at a disadvantage. This rule is ordinarily to be accepted for placing a
successful party in the same position, which they had been in, if the wrong
complained against them would not have been done to them. 20 However, this
cannot be a blanket proposition and we have to consider the context in which
the interdict was passed i.e. to pre serve the forest area. It is a different matter
that some lease s were ultimately found as within the restricted area and some d
outside (as is the case of the appellants) . Even if we take the notification of the
State of U.P. dated 3 1 -7-20 1 4 into account, and the authorisation of the DMs
to extend the lease where no third-party interest was created and the leases
were prevented from operation for no fault attributable to the le aseholders , the
subsequent transparent Policy of 20 1 7 would weigh in favour of not exercising
the jurisdiction to extend the leases for the obstructed period. e
43. We, thus, find that the appropriate course of action to be adopted in this
case cannot be to extend the lease for the obstructed period but to direct that the
security deposit, if not already refunded, should be refunded and the amount
deposited by the appellants/leaseholders as advance royalties to the respondent
f
State be also paid back to them along with something more.
44. We now come to that something more and we are taking recourse to
that course of action by exercising our jurisdiction under Article 1 42 of the
Constitution of India to do complete justice inter se the parties. We do this,
keeping in mind that the appellants' monies have remained blocked and mining
prevented for no fault of theirs, despite success in earlier legal proceedings , and
this aspect has to be balanced with the statutory provision or for that matter, g
even the contractual provisions not providing for extension of leases. We are,
thus, of the view that since these monies have remained blocked, the monies
should carry simple interest @ 9% p.a.
1 3 Sulekhan Singh & Co. v . State of U.P., (20 1 6) 4 SCC 663

1 2 Nar Narain Mishra v. State of U.P., 201 3 SCC OnLine All 1 39 1 9 h
20 Beg Raj Singh v. State of U.P., (2003) 1 SCC 726
�cccc
-----------------------------------------------------------------------------------------------------------------------------------------------------------
DHARMENDRA KU MAR SINGH v. STATE OF U.P. (Sanjay Kishan Kaul, J.) 1 15

45. Insofar as the security deposit is concerned, if it has already been
refunded, it would naturally not carry any interest and if not, then it will carry
a interest from the date it ought to have been refunded after the expiry of the
lease till it is actually refunded in case of expired leases. On the other hand, so
far as the advance royalties for the obstructed period are concerned, the said
amounts will carry interest @ 9% p.a. from the date the obstruction occurred
i.e . 29-8-20 1 8 and 5-2-20 1 9 , as applicable to the respective appellants, till the
date of payment.
b
Conclusion
46. The appeals are , thus, decided as aforesaid with the limited directions
and to the extent the observations in the impugned order are in contradiction
thereto are set aside . It is directed that the following amounts be refunded to
the appellants :
C
46. 1 . S ecurity deposit, if not already refunded, with simple interest @ 9 %
p.a. from the date i t ought to have been refunded after the expiry o f the le ase
till it is now actually refunded, in case of expired leases.
46.2. Advance royalties, if not already refunded, with simple interest @
9 % p.a. from the date of the obstruction occurred i.e. 29-8-20 1 8 and 5-2-20 1 9
d as applicable to the respective appellants, till the date of payment.
46.3. B oth the aforementioned amounts be refunded within two months
from today.
47. The appeals are disposed of in terms aforesaid, leaving the parties to
bear their own costs. All pending applications also stand disposed of.
e
h
1
IN THE COURT OF SH. MANOJ KUMAR RANA, CIVIL JUDGE

83
(SENIOR DIVISION)-CUM- ACJM, GURUGRAM
IA NO. 1 OF 2022
IN
CIVIL SUIT NO. 315 OF 2022
NDOH: 27.04.2022
IN THE MATTER OF:
NEMO through Lt Col (Veteran) Sarvadaman Singh Oberoi ... Applicant Petitioner
Versus
Union of India through The Secretary, Ministry of Ayush, Government of India & others
... Defendants
INDEX
SR DATE PAGE
PARTICULARS
NO
pplication under Section 151 CPC r/w Order 3 Rule 1 describing
ontumacious conduct of all the six respondents neglecting to file
·tten statements (WS) for over 30 days, actually 62 days without
eeking permission of court for delay beyond 30 days in filing WS
(having themselves sough time on 15.02.2022 for filing WS by 18.04.22 2-5
2.02.2022) in harmony with law laid down in Kanwar Singh Saini
1.
. High Court of Delhi, 2011 (6) UJ (SC) 4202 and failing to be

resent in person through authorised officer on 16.04.2022 when so
rdered vide order dated 04.04.2022, with affidavit
anwar Singh Saini v. High Court of Delhi, 2011 (6) UJ (SC)
2. 3.09.11 6-22
202
albir Singh v. Jagjit Singh and ors., MANU/PH/0200/1983, AIR
3. 23-25
1983P&H 154
nion of India v. Orient Engg. & Commercial Co. Ltd. and Ors.,
4. 7.10.77 26-27
1sc100061977, (1978) 1 sec 10
.P. Chadha v. Triyugi Narain Mishra and Ors.,
5.12.00 28-¥/
1sc101ss12000, c2001) 2 sec 221
5.
Place: Gurugram
Date: r8.04.2ffi..2
ApMtitioner
I� ,2--oi 2.-
NEMO through Lt Col (Veteran) Sarvadaman Singh Oberoi

-fJ�
1102, Tower 1, Uniworld Garden, Sector 47, Gurugram 122018

2
84
IN THE COURT OF SH. MANOJ K UMAR RANA, CIVIL JUDGE
(SENIOR DIV ISION)-CUM- ACJM, GURUGRAM
IA NO. 1 OF2022
IN
CIVIL SUIT NO. 315 OF 2022
NDOH: 27.04.2022
IN THE MATTER OF:
NEMO through Lt Col 0/ eteran) Sarvadaman Singh Oberoi •.. Applicant Petitioner
Versus
Union of India through The Secretary, Ministry of Ayush, Government of India & others
... Defendants
APPLICATION UNDER SECTION 151 CPC R/W ORDER 3 RULE 1 DESCRIBING

CONTUMACIOUS CONDUCT OF ALL THE SIX RESPONDENTS NEGLECTING
TO FILE WRITTEN STATEMENTS (WS) FOR OVER 30 DAYS, ACTUALLY 62
DAYS WITHOUT SEEKING PERMISSION OF COURT FOR DELAY BEYON D 30
DAYS IN FILING WS (HAVING THEMSELV ES SOUGH TIME ON 15.02.2022 FOR
FILING WS BY 22.02 .2022 ) IN HARMONY WITH L AW LAID DOWN IN
KANWAR SINGH SAINI V. IDGH COURT OF DELID, 2011 (6) UJ (SC) 4202 AND
FAILING TO BE PRESENT IN PERSON THROUGH AUTHORISED OFFICER ON
1 6.04.2022 WHEN SO ORDERED VIDE ORDER DATED04.04.2022
Most respectfully submitted:

1. That notice had been served on Respondents No. 1 to 6 on 14.02.2022.
2. That the Ld. CGSC appeared for Union of India on 15.02.2022 and he as also the
State ofHaryana sought time till 22.02.2022 for filing written statement as recorded
in order of the date.
3. That out of abundant caution fresh notice was issued to two respondents and the
defendant no. 6 was considered ex-parte from 15.02.2022 but was restored suo moto
by the court only on 22.03.2022, this too only because attendance was being recorded
of the. Ld. CGSC without a formal restitution from 22.02.2022 onwards.
·4_ That on 22.03.2022 and all subsequent days the respondents were directed to file WS
but on every date no WS was filed neither a permission was sought for filing WS
beyond the 30 days limit. Be that as it may, on 04.04.2022 the Ld. Court directed the
personal presence of authorised officers of the six defendants concerned for
16.04.2022 in terms of well settled power granted under Order 3 Rule 1 to resolve
the impasse created by the obstructive/ delay tactics of filing multiple applications to
avoid filing WS within the stipulated 30 days.
3
85
5. That on 16.04.2022 the defendants not only failed to be present as ordered on
04.04.2022 but had the temerity to file an application under Order 1 Rule 10 (not
signed physically by the authorised officer of the Defendant No. 2 who was absent)
and yet another application for Stay of proceedings on frivolous grounds without any
supporting documents perhaps under Order 39 Rules 1 & 2 which was also not signed
physically by the authorised officer of the Defendant No. 3 who was also absent.
6. That delay and obstruction of this Jus Cogens Peremptory Norms case filed on
28.01.2022 till 18.04.2022 is clearly at the hands of the six respondents, this Ld.
Court having passed nearly daily more than 26 orders in this case since 28.01 .2022
besides the three orders passed by the appellate court in miscellaneous appeals.
7. That it is provided in Order 12 Rule 2 that "Either party may call upon the other
party to admit within seven days from the date of service of the notice any
document ... .. " and accordingly the defendants were served notice on 18.02.2022
itself to peruse the documents vide Form No. 9 at page 10 of the application dated
17.02.2022, but the defendants failed to carry out inspection from 18.02.2022 till the
closing date of22.02.2022. They have only themselves to blame as the plaintiffs are
now entitled to deemed admission, if so allowed by Ld. Court in terms of Order 12
Rule 2A.
8. That issues could be framed only if WS is filed and return is made so as to enable the
all important "first hearing" where this Ld. Court could apply the provisions of Order
10 Rule 1 as held in Para 6 of Kanwar Singh Saini v. High Court of Delhi, 2011
(6) UJ (SC) 4202.
9. Hence post decisions on Temporary Injunction and Order 12 on 15.02.2022, this

court, in accordance with law well settled, as above elucidated in painstaking detail,
may after completion of the Order 12 PROCESS in accord with law and thereafter
explore the CIL mandated option of "Remedy and Reparation" (UN GA Res
60/147, 2005) for Genocide, Crimes Against Humanity & Crime of Aggression.
4
86
10. That this court may exercise its wise discretion, of course in accord with well settled
law as elucidated above, or otherwise in its wisdom, under Order 3 Rule 1, Order 12
Rule 2-A and Order 12 Rule 3-A, in aid of justice of the situation.
PRAYED ACCORDINGLY
Place: Gurugram
Date: 18.04.2022
Applicant/Petitioner
NEMO through Lt Col (Veteran) Sarvadaman Singh Oberoi
1102, Tower 1, Uniworld Garden, Sector 47, Gurugram 122018

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1

IN THE COURT OF SH. MANOJ KUMAR RANA, CJ (SD), GURUGRAM

VOL. III.] CASES IN THE PRIVY COUNCIL. 465

Reversal of judgment-Order in Council, construction of-Repayment of amount

By an Order in Council made on an appeal, the judgment of the Supreme

* Present :-LORD CAIRNS, Sm JAMES WILLIAM CoLVILE, and Sm JOSEPH

466 CASES IN THE PRIVY COUNCIL. [L. R.

VOL. Ill.] CASES IN THE PRIVY COUNCIL. 467

if it had been entered on the 3rd of June, 1867. I have no doubt J. 0.

(l) 9 B. & C. 381.

468 CASES IN THE PRIVY COUNCIL. [L. R.

VOL. III.] CASES IN THE PRIVY COUNCIL. 460

THEIR LORDSHIPS :directed, that the Record of the proceedings

470 CASES IN THE PRIVY COUNCTI;. [L. R.

J. C. suance of such judgment of reversal. Though not expressed in the

N OL. III.] CASES IN TJrn PRIVY COUNCIL. 471

l\fr. J{ay, Q.C., and l\Ir. Holl, for the Respondents :-

472 CASES IN THE PRIVY COUNCIL. [L. R.

J. 0. no power to award interest. It 'Jtmnot be successfully contended,

VOL. III.] CASES IN THE PRIVY COUNCIL. 473

474 CASES IN THE PRIVY COUNCIL. [L. R.

VOL. III. ] CASES IN THE PRIVY COUNCIL. 47 5

proper ly consequential upon the reversal of the original judgment by 1871

CASES IN THE PRIVY COUNCIL. . [L. R.

D'EscoMPTE It is .said, however, that there is no authority for orde:ring the

VOL. III.] · CASES IN 'fHE PRIVY COUNCIL. 477

THEIR LORDSHIPS repOl'ted, that in obedience to Her Majesty's

478 CASES IN THE PRIVY COUNCIL. [L. R.

.T. C.* HENRY THURBURN AND ANOTHER APPELLAN'l'S ;

ON APPEAL FROM THE SUPREME COURT Ol!� THE CAPE

-Bankrttptcy-Distr·ibittion of Assets- Order of priority of Creditors on

separate and J"oint estate of Banlcrupt-Postponement of Wife's claim under

* Present :-LORD CAIIlNS, Sm JAMES WILLIAM CoLVILE, SIR RonERT P1uL­

2 K. B. KING'S RENCH DIVISION.

"requires a comparison with the whole rent, and the whole C. A.

SEAFORD COURT ESTATES LD. v. ASHER. C. A.

Landlord and Tena1�t-Standard rent-Letting at higher rent-Burden May 2, 3;

thereby justified-Increase of Rent and Mortgage Interest (Restrictions) Asquith, and

KING'S BENCH DIVISION. [1949]

APPEAL from Bloomsbury county court.

2 K. B. KING ' S BENCH DIVISION.

annum until three months after the cessation of hostilities C . A.

2 K. B. Kn;G' s BENCH DIVISim; .

been transferred to him. Both limbs of the sub-section C. A.

486 KING' S BENCH DIVISION . [1949]

June I. Their Lordships read their judgments .

2 K. B. KIN G ' S BENCH DIVISIO N .

favourable than the previous terms . This must, as it seems c. A.

KING ' S BENCH DIVISION . [1949]

ASQUITH L.J. This is an appeal by the plaintiff company

2 K. B. KING' S BENCH DIVISION .

of the provisions of s. 2, sub-s. 3, of the Rent Restrictions C . A.

repayment in respect of nine quarters, but as to one of these Asquith L.J.

KING' S BENCH DIVISION. [1949]

2 K. B. KI NG'S BENCH DIVISIO N . 49 1

it may be helpful to proceed by stages and to consider first Asquith L.J.

49 2 KING' S BENCH DIVISIO N .

C. A. must be attributed to the phrase " burden or liability." If

2 K. B. KING' S BENCH DIVISION. 493

or indeed short of that the mere expediency, of providing C. A.

494 KING' S BENCH DIVISION. [1949]

decision of the Court of Appeal actually incorporates the words

2 K. B. KI NG'S BENCH DIVISION . 495

* Present :-LORD CAIIlNS, Sm JAMES WILLIAM CoLVILE, SIR RonERT P1uL

A preliminary objection has been raised by counsel for respon